Re: [CCWG-ACCT] Your public comment re replacement of IANA provider
Bruce, The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws. In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws. Being able to seek arbitration over violations of AoI and all bylaws is VERY different from just being able to enforce the Fundamental Bylaws. Am I reading this incorrectly? If not, can you please elaborate? Alan At 17/09/2015 05:13 AM, Bruce Tonkin wrote:
.....
The MEM proposal allows the community to ensure the Board is following the bylaws, and that the decision of an independent panel becomes binding.
.....
You are correct on that Alan. The Memo states explicitly that the MEM is only available to challenge alleged violations of the Fundamental Bylaws. The overall material makes clear that other Bylaws and the entire AOI would remain subject to the existing IRP. I believe that I pointed out that very significant difference in scope in earlier emails on this list. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Thursday, September 17, 2015 11:30 AM To: Bruce Tonkin; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Bruce, The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws. In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws. Being able to seek arbitration over violations of AoI and all bylaws is VERY different from just being able to enforce the Fundamental Bylaws. Am I reading this incorrectly? If not, can you please elaborate? Alan At 17/09/2015 05:13 AM, Bruce Tonkin wrote:
.....
The MEM proposal allows the community to ensure the Board is following the bylaws, and that the decision of an independent panel becomes binding.
.....
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I also read this as being limited to violations of Fundamental Bylaws. A point worth clarifying, which is why I am moving Bruce from "cc" to "to". Best, Thomas --- rickert.net
Am 17.09.2015 um 21:53 schrieb Phil Corwin <psc@vlaw-dc.com>:
You are correct on that Alan. The Memo states explicitly that the MEM is only available to challenge alleged violations of the Fundamental Bylaws. The overall material makes clear that other Bylaws and the entire AOI would remain subject to the existing IRP.
I believe that I pointed out that very significant difference in scope in earlier emails on this list.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Thursday, September 17, 2015 11:30 AM To: Bruce Tonkin; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider
Bruce,
The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws. In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws.
Being able to seek arbitration over violations of AoI and all bylaws is VERY different from just being able to enforce the Fundamental Bylaws.
Am I reading this incorrectly? If not, can you please elaborate?
Alan
At 17/09/2015 05:13 AM, Bruce Tonkin wrote:
.....
The MEM proposal allows the community to ensure the Board is following the bylaws, and that the decision of an independent panel becomes binding.
.....
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----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6081 / Virus Database: 4401/10465 - Release Date: 08/19/15 Internal Virus Database is out of date. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello Alan,
The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws.
Yes the ICANN Board also agrees that the IRP still applies to all bylaws. It can be used by individuals, companies or groups to bring actions.
In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws.
The MEM is fully funded and is brought by SOs and ACs, if there is a breach of fundamental bylaws, In the case of the MEM - in addition to funding the cost of the standing panel, the ICANN also will pay the legal advice fees for the MEM issue group. Much like ICANN is paying for the attorney fees for the CCWG today. The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied. Regards, Bruce Tonkin
On Fri, Sep 18, 2015 at 10:20 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied.
Hello Bruce, Although I recognise that there could be a situation where the IRP may indeed have made wrong judgement of an issue which the MEM may then conclude in support of ICANN's position not to follow IRP's action. Other than that, considering that the MEM is expected to be generally looking through the same processes/documents that the IRP may have looked into, I don't seem to see the huge advantage that the MEM will bring especially if board did not follow outcome of IRP that eventually receives MEM blessings as well. As it would be would seem like going round in circle. However there will be a major difference/advantage if you could confirm whether the MEM outcome will be binding/final on ICANN board. Is that the case? Regards
Regards, Bruce Tonkin
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Friday, September 18, 2015 at 7:23 AM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider On Fri, Sep 18, 2015 at 10:20 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied. Hello Bruce, Although I recognise that there could be a situation where the IRP may indeed have made wrong judgement of an issue which the MEM may then conclude in support of ICANN's position not to follow IRP's action. Other than that, considering that the MEM is expected to be generally looking through the same processes/documents that the IRP may have looked into, I don't seem to see the huge advantage that the MEM will bring especially if board did not follow outcome of IRP that eventually receives MEM blessings as well. As it would be would seem like going round in circle. However there will be a major difference/advantage if you could confirm whether the MEM outcome will be binding/final on ICANN board. Is that the case? Regards Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=s28TEp9z6_r1hPE3ZiSxezIcPLwyzNB96XzV3g69qJw&s=tT7IgukgeCC6rhExFd-pJAUUwYPaFz8r8XCS08-YBH0&e=> -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=s28TEp9z6_r1hPE3ZiSxezIcPLwyzNB96XzV3g69qJw&s=EcUX7nplG7Hk22vJbYtgoL3AcRyX1-K-o4tdKEOPang&e=> Mobile: +2348035233535 alt email:<https://urldefense.proofpoint.com/v2/url?u=http-3A__goog-5F1872880453&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=s28TEp9z6_r1hPE3ZiSxezIcPLwyzNB96XzV3g69qJw&s=eRRiFgCRNHkBkaK0TYNOi8dClSlZVtqaFAbch8TFLuI&e=>seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action!
Becky is on the money, as is nearly often most always the case. Shouldn't we just conclude that MEM is fatally flawed, and (at best) is the result of muddled thinking by its proponents, say so clearly, so we can get on with something productive, like, oh, I don't know, counting sheep? On 18/09/15 15:57, Burr, Becky wrote:
Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary.
Hi Nigel, I don't think we should conclude that way, i think we should maintain an open mind, ask questions and with the appropriate response try re-evaluate the proposal. I for instance like the idea that the MEM has the opportunity to say that "we are happy with board's decision not to follow the recommendation of the IRP" My question however is what happens when the MEM says "we support the IRP's verdict and like the board to implement it"? Regards On Fri, Sep 18, 2015 at 4:10 PM, Nigel Roberts <nigel@channelisles.net> wrote:
Becky is on the money, as is nearly often most always the case.
Shouldn't we just conclude that MEM is fatally flawed, and (at best) is the result of muddled thinking by its proponents, say so clearly, so we can get on with something productive, like, oh, I don't know, counting sheep?
On 18/09/15 15:57, Burr, Becky wrote:
Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary.
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
All, please let us analyze all comments carefully. All commenters, including the Board, made suggestions in order to improve our recommendations and / or because they want to address a concern. Let us try to remove as many concerns as possible and benefit as much as we can from all contributions. We are in the luxurious position that we can amalgamate the best of all contributions into our recommendations. Best, Thomas
Am 18.09.2015 um 17:48 schrieb Seun Ojedeji <seun.ojedeji@gmail.com>:
Hi Nigel,
I don't think we should conclude that way, i think we should maintain an open mind, ask questions and with the appropriate response try re-evaluate the proposal. I for instance like the idea that the MEM has the opportunity to say that "we are happy with board's decision not to follow the recommendation of the IRP" My question however is what happens when the MEM says "we support the IRP's verdict and like the board to implement it"?
Regards
On Fri, Sep 18, 2015 at 4:10 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote: Becky is on the money, as is nearly often most always the case.
Shouldn't we just conclude that MEM is fatally flawed, and (at best) is the result of muddled thinking by its proponents, say so clearly, so we can get on with something productive, like, oh, I don't know, counting sheep?
On 18/09/15 15:57, Burr, Becky wrote: Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
-- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng/> Mobile: +2348035233535 <> alt email: <http://goog_1872880453/>seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng>
Bringing another down does not take you up - think about your action!
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+1 Thomas. The CCWG did an excellent job analyzing, assessing and addressing the input we received during the first public comment period. It was a lot of work, but it resulted in a much stronger "Version 2" of the CCWG proposal and reference model. We must now do the same with input received during the second public comment period, including comments from the Board, with the goal of further refining, improving and explaining our recommendation. If we take a measured and deliberate approach to our review, I'm confident our final product will adequately address the community's concerns and also be acceptable to NTIA. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Friday, September 18, 2015 11:55 AM To: Seun Ojedeji Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider All, please let us analyze all comments carefully. All commenters, including the Board, made suggestions in order to improve our recommendations and / or because they want to address a concern. Let us try to remove as many concerns as possible and benefit as much as we can from all contributions. We are in the luxurious position that we can amalgamate the best of all contributions into our recommendations. Best, Thomas Am 18.09.2015 um 17:48 schrieb Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hi Nigel, I don't think we should conclude that way, i think we should maintain an open mind, ask questions and with the appropriate response try re-evaluate the proposal. I for instance like the idea that the MEM has the opportunity to say that "we are happy with board's decision not to follow the recommendation of the IRP" My question however is what happens when the MEM says "we support the IRP's verdict and like the board to implement it"? Regards On Fri, Sep 18, 2015 at 4:10 PM, Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote: Becky is on the money, as is nearly often most always the case. Shouldn't we just conclude that MEM is fatally flawed, and (at best) is the result of muddled thinking by its proponents, say so clearly, so we can get on with something productive, like, oh, I don't know, counting sheep? On 18/09/15 15:57, Burr, Becky wrote: Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary. _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<http://www.fuoye.edu.ng/> Mobile: +2348035233535 alt email: <http://goog_1872880453/> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action! _______________________________________________ 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
+1 and in full agreement with those sentiments. Review all the comments carefully and deliberatively with a focus on which have identified demonstrable (not just hypothetical) weaknesses or gaps in the 2nd proposal, and which can strengthen achievement of the desired accountability enhancements. That approach will lead to a solid final report. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Friday, September 18, 2015 12:54 PM To: Thomas Rickert; Seun Ojedeji Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider +1 Thomas. The CCWG did an excellent job analyzing, assessing and addressing the input we received during the first public comment period. It was a lot of work, but it resulted in a much stronger "Version 2" of the CCWG proposal and reference model. We must now do the same with input received during the second public comment period, including comments from the Board, with the goal of further refining, improving and explaining our recommendation. If we take a measured and deliberate approach to our review, I'm confident our final product will adequately address the community's concerns and also be acceptable to NTIA. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Friday, September 18, 2015 11:55 AM To: Seun Ojedeji Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider All, please let us analyze all comments carefully. All commenters, including the Board, made suggestions in order to improve our recommendations and / or because they want to address a concern. Let us try to remove as many concerns as possible and benefit as much as we can from all contributions. We are in the luxurious position that we can amalgamate the best of all contributions into our recommendations. Best, Thomas Am 18.09.2015 um 17:48 schrieb Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hi Nigel, I don't think we should conclude that way, i think we should maintain an open mind, ask questions and with the appropriate response try re-evaluate the proposal. I for instance like the idea that the MEM has the opportunity to say that "we are happy with board's decision not to follow the recommendation of the IRP" My question however is what happens when the MEM says "we support the IRP's verdict and like the board to implement it"? Regards On Fri, Sep 18, 2015 at 4:10 PM, Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote: Becky is on the money, as is nearly often most always the case. Shouldn't we just conclude that MEM is fatally flawed, and (at best) is the result of muddled thinking by its proponents, say so clearly, so we can get on with something productive, like, oh, I don't know, counting sheep? On 18/09/15 15:57, Burr, Becky wrote: Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary. _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<http://www.fuoye.edu.ng/> Mobile: +2348035233535 alt email: <http://goog_1872880453/> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action! _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6081 / Virus Database: 4401/10465 - Release Date: 08/19/15 Internal Virus Database is out of date.
Hello Becky,
Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary.
Can you elaborate Becky? I thought all proposals basically assumed that we were preferring to use independent panels (much like UDRP) that are not part of any one country's judicial system rather than immediately taking matters to court in one country - which presumably is California, USA. I understand that legal courts were only used when there is a failure in the independent panel process. Thanks, Bruce Tonkin
Thanks Becky. I am also concerned about this aspect. I think it is particularly relevant when evaluating availability of injunctive relief pending arbitration proceedings proposed by the MEM. Anne [cid:image001.gif@01D0F49F.FDECB3F0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Friday, September 18, 2015 7:57 AM To: Seun Ojedeji; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Furthermore, and more worrisome to me is what the MEM does to the fundamental concept of an independent judiciary. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Friday, September 18, 2015 at 7:23 AM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider On Fri, Sep 18, 2015 at 10:20 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied. Hello Bruce, Although I recognise that there could be a situation where the IRP may indeed have made wrong judgement of an issue which the MEM may then conclude in support of ICANN's position not to follow IRP's action. Other than that, considering that the MEM is expected to be generally looking through the same processes/documents that the IRP may have looked into, I don't seem to see the huge advantage that the MEM will bring especially if board did not follow outcome of IRP that eventually receives MEM blessings as well. As it would be would seem like going round in circle. However there will be a major difference/advantage if you could confirm whether the MEM outcome will be binding/final on ICANN board. Is that the case? Regards Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=s28TEp9z6_r1hPE3ZiSxezIcPLwyzNB96XzV3g69qJw&s=tT7IgukgeCC6rhExFd-pJAUUwYPaFz8r8XCS08-YBH0&e=> -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=s28TEp9z6_r1hPE3ZiSxezIcPLwyzNB96XzV3g69qJw&s=EcUX7nplG7Hk22vJbYtgoL3AcRyX1-K-o4tdKEOPang&e=> Mobile: +2348035233535 alt email:seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> Bringing another down does not take you up - think about your action! ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Hello Seun,
Although I recognise that there could be a situation where the IRP may indeed have made wrong judgement of an issue which the MEM may then conclude in support of ICANN's position not to follow IRP's action. Other than that, considering that the MEM is expected to be generally looking through the same processes/documents that the IRP may have looked into, I don't seem to see the huge advantage that the MEM will bring especially if board did not follow outcome of IRP that eventually receives MEM blessings as well. As it would be would seem like going round in circle.
No I wasn’t implying that the MEM would be used to re-hear a IRP case. I just meant that not following the IRP procedure is itself a fundamental bylaw. I was more envisaging a case where a company launched an IRP, and the community felt that the Board had not followed the IRP process. ➢ confirm whether the MEM outcome will be binding/final on ICANN board. Is that the case? Yes. Regards, Bruce Tonkin
Bruce:
The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied.<<
While I remain skeptical that the SMM creates advantages in regard to the (quite hypothetical) potential problems of capture and instability, and while the MEM is just as untested as the SMM, the IRP follow-up process as described seems unnecessarily inefficient, costly, and time-consuming. What you seem to be saying is that if the Board does not follow an IRP decision, then direct access to court enforcement would not exist and a MEM would have to be brought as an intermediary step to court enforcement (observing that in this way the MEM could be applied to non-Fundamental Bylaws as a kind of appeals mechanism). Some questions: -What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws? -Would the IRP in a post-transition world be advisory or binding upon the Board? -Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader? Even if those questions are answered to the satisfaction of the CCWG, it would appear that adoption of MEM would require a reappraisal of which Bylaws are deemed Fundamental, and a possible expansion of them, to avoid the two-step process you describe. That would of course be accompanied by the downside of making those additional Bylaws more difficult to amend in the future. I look forward to your responses. Very best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Friday, September 18, 2015 5:21 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hello Alan,
The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws.
Yes the ICANN Board also agrees that the IRP still applies to all bylaws. It can be used by individuals, companies or groups to bring actions.
In the body of the Board comments, it says that the Board is proposing the MEM to allow the community ensure that ICANN is complying with its Articles of Incorporation and Bylaws. However, in the "Memo on Proposed Approach for Community Enforceability", it says that arbitration may be used only for violation of Fundamental Bylaws.
The MEM is fully funded and is brought by SOs and ACs, if there is a breach of fundamental bylaws, In the case of the MEM - in addition to funding the cost of the standing panel, the ICANN also will pay the legal advice fees for the MEM issue group. Much like ICANN is paying for the attorney fees for the CCWG today. The independent review process (IRP) is itself a fundamental bylaw. So the two become linked in that if the IRP is used to decide whether the Board has followed the bylaws, and the board does not follow the binding decision of the IRP panel (to the extent permitted by law) - then this would be a breach of the fundamental bylaw, and the MEM could be applied. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6081 / Virus Database: 4401/10465 - Release Date: 08/19/15 Internal Virus Database is out of date.
Hello Phil,
What you seem to be saying is that if the Board does not follow an IRP decision, then direct access to court enforcement would not exist
Well firstly I think it is highly unlikely that the board would not follow an IRP decision. Speaking personally I don't see why you couldn't go to court enforcement for a binding IRP decision.
-What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?
I think the rationale was to create something purpose built for the broader community to dispute a decision by the Board. The rules of this mechanism could be adjusted over time to suit the community situation, compared to the situation of a single company. In some cases companies may use the dispute process simply to create a delay and a commercial advantage - so the rules for disputes could be different for the community versus single companies. The assumption I guess was that it would most likely be fundamental bylaws that would result in the community as a whole wanting to go to dispute resolution.
-Would the IRP in a post-transition world be advisory or binding upon the Board?
Yes it would be binding as per the CCWG proposal. See our response in section 14 of the matrix. As noted earlier the Board is broadly supportive of the improvements to the IRP.
-Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader?
Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law. The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel. Can you give an example of a situation where the community would want ICANN to breach the law? Regards, Bruce Tonkin
Bruce, in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now? Whether, Board, Staff, Counsel, whoever, I don't really care, but what do your words mean in action? el -- Sent from Dr Lisse's iPad mini
On 19 Sep 2015, at 02:35, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Phil,
What you seem to be saying is that if the Board does not follow an IRP decision, then direct access to court enforcement would not exist
Well firstly I think it is highly unlikely that the board would not follow an IRP decision.
Speaking personally I don't see why you couldn't go to court enforcement for a binding IRP decision.
-What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?
I think the rationale was to create something purpose built for the broader community to dispute a decision by the Board. The rules of this mechanism could be adjusted over time to suit the community situation, compared to the situation of a single company. In some cases companies may use the dispute process simply to create a delay and a commercial advantage - so the rules for disputes could be different for the community versus single companies. The assumption I guess was that it would most likely be fundamental bylaws that would result in the community as a whole wanting to go to dispute resolution.
-Would the IRP in a post-transition world be advisory or binding upon the Board?
Yes it would be binding as per the CCWG proposal. See our response in section 14 of the matrix. As noted earlier the Board is broadly supportive of the improvements to the IRP.
-Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader?
Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law. The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel. Can you give an example of a situation where the community would want ICANN to breach the law?
Regards, Bruce Tonkin
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Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case. The ICANN Board then complied with the outcome of the IRP. Regards, Bruce Tonkin
Bruce, the way I understand it ICANN was uncooperative with the panel and then complied with the outcome of the IRP. el -- Sent from Dr Lisse's iPad mini
On 20 Sep 2015, at 01:37, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case.
The ICANN Board then complied with the outcome of the IRP.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Bruce, would you be willing to share your "understanding" why you are seeking to introduce ICP-1 into Garnishee-Appellee's Unopposed Motion for Leave to File a Supplemental Appendix (USCA Case #14-7193 Document #1573369) while at the same time my understanding is that you agreed with ICP-1 being archived (as not ever having been policy)? Who are you misleading, the Appeals Court or the ccNSO? And before you reply I really would appreciate, very much, if you considered the accountability implications of your reply thoroughly. As in if you were testifying under oath, like. greetings, el -- Sent from Dr Lisse's iPad mini -- Sent from Dr Lisse's iPad mini
On 20 Sep 2015, at 08:26, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Bruce,
the way I understand it ICANN was uncooperative with the panel and then complied with the outcome of the IRP.
el
-- Sent from Dr Lisse's iPad mini
On 20 Sep 2015, at 01:37, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case.
The ICANN Board then complied with the outcome of the IRP.
Regards, Bruce Tonkin
For accountability purposes: Bruce has replied off list. I told him I did not want to engage off list. el -- Sent from Dr Lisse's iPad mini
On 21 Sep 2015, at 23:06, Dr Eberhard W Lisse <el@lisse.na> wrote:
Bruce,
would you be willing to share your "understanding" why you are seeking to introduce ICP-1 into
Garnishee-Appellee's Unopposed Motion for Leave to File a Supplemental Appendix (USCA Case #14-7193 Document #1573369)
while at the same time my understanding is that you agreed with ICP-1 being archived (as not ever having been policy)?
Who are you misleading, the Appeals Court or the ccNSO?
And before you reply I really would appreciate, very much, if you considered the accountability implications of your reply thoroughly.
As in if you were testifying under oath, like.
greetings, el -- Sent from Dr Lisse's iPad mini
-- Sent from Dr Lisse's iPad mini
On 20 Sep 2015, at 08:26, Dr Eberhard W Lisse <epilisse@gmail.com> wrote:
Bruce,
the way I understand it ICANN was uncooperative with the panel and then complied with the outcome of the IRP.
el
-- Sent from Dr Lisse's iPad mini
On 20 Sep 2015, at 01:37, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case.
The ICANN Board then complied with the outcome of the IRP.
Regards, Bruce Tonkin
Sent to wrong list before. I also did send a separate email to Eberhard, and I will respect his preference to only respond to him on this list. Regards, Bruce Tonkin -----Original Message----- To: ccwg-accountability1@icann.org Hello Eberhard,
would you be willing to share your "understanding" why you are seeking to introduce ICP-1 into Garnishee-Appellee's Unopposed Motion for Leave to File a Supplemental Appendix (USCA Case #14-7193 Document #1573369)
I don't know anything about this - but will ask the ICANN legal team when I get into LA.
while at the same time my understanding is that you agreed with ICP-1 being archived (as not ever having been policy)?
I assume you are asking what the status is of the ICP-1 document. Again I will seek advice from staff and other Board members that are more familiar with the topic when I get into LA later this week. Is this part of the CCWG proposal in some way? Regards, Bruce Tonkin
On Tue, Sep 22, 2015 at 8:25 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
<snip> fair enough as i will be surprised if you have answers to all questions ;-)
Is this part of the CCWG proposal in some way?
Good question. Regards
Regards, Bruce Tonkin
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
Don't be silly. A prime example of accountability failure. On 22/09/15 08:30, Seun Ojedeji wrote:
On Tue, Sep 22, 2015 at 8:25 AM, Bruce Tonkin <
Is this part of the CCWG proposal in some way?
Good question.
Bruce, thank you, I am CCing to the ccTLD lists which may have bounced you :-)-O I have two points, actually, most often, if not always, whenever we ask a Board member we hear something like "I don't know, let me find out". This is most certainly not a diligent (or fiduciarily responsible) way of running the affairs of (such) a corporation. It made me wonder whether this is incompetence or deliberate. We also see hear the Board saying it is in agreement with the CCWG proposal while at the same time putting forward proposals that show the exact opposite. In other words, actions speak louder than words. The skill (and audacity) displayed here is so admirable that I do not wonder any longer. Secondly, ICP-1 doesn't (only) have to go, it never existed. And reliance on it by ICANN (in any way) is not only counterproductive, as it may trigger significant push back from ccTLD Managers which might have a negative impact on the consensus required for the transition, it might be misleading the Court. el On 2015-09-22 09:25, Bruce Tonkin wrote:
Sent to wrong list before. I also did send a separate email to Eberhard, and I will respect his preference to only respond to him on this list.
Regards, Bruce Tonkin
-----Original Message-----
To: ccwg-accountability1@icann.org
Hello Eberhard,
would you be willing to share your "understanding" why you are seeking to introduce ICP-1 into Garnishee-Appellee's Unopposed Motion for Leave to File a Supplemental Appendix (USCA Case #14-7193 Document #1573369)
I don't know anything about this - but will ask the ICANN legal team when I get into LA.
while at the same time my understanding is that you agreed with ICP-1 being archived (as not ever having been policy)?
I assume you are asking what the status is of the ICP-1 document. Again I will seek advice from staff and other Board members that are more familiar with the topic when I get into LA later this week.
Is this part of the CCWG proposal in some way?
Regards, Bruce Tonkin
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Bruce What I'm more interested in is why the ICANN Board and Staff wishes to persist, in this longstanding and direct opposition to the ccTLD community with this ICP-1 nonsense. Since 1999 already. ICP-1 is not, and never has been anything to do with ccTLDs. It was written on the back of an envelope by an ICANN staffer 15 years ago without any reference to anyone. It had ZERO input or approval from the community. It has neither legality nor legitimacy. It was unanimously rejected by the ccTLD constituency immediately, and at the time. A definitive analysis of the situation was written by one Kim Davies, then of CENTR, who I think you know in a different role today. See also the below email from a former Chairman of the Board of ICANN (as he later became) to the DNSO (now ccNSO+gNSO). Over a six year period, the ccNSO's Delegation and Redelegation Working Group, succeeded by the Framework of Interpretation Working Group examined, in considerable depth, the legal and policy background to ccTLD delegations, including ICANN's various unilateral attempts to impose changes to ccTLD procedures. That WG (of which I have the honour to have been a member) found that ICP-1 has no status whatsoever in the management of ccTLDs relationship to the root zone. The Framework of Interpretation (a guid to the construction of applicable ccTLD policy) was eventually formally adopted by the ICANN Board earlier this year. Did you not take part in that vote? The ICANN Board also at that time resolved to follow the ccNSO's recommendation, and archive ICP-1. Yet, only in the last couple of weeks, ICANN, the Corporation chooses to continue to put ICP-1 before the Appeal Court as having some status. And you (ICANN) continue to display ICP_1 on your website, as the definitive statement of ICANN's relationships with ccTLDs. Some might be tempted, after 15 years of this behaviour, to think it just /might/ be deliberate. And you are STILL surprised that I sometimes have the perception that ICANN (as a collective) cannot be trusted and will not keep its word? And THAT is the major question of accountability right there. Nigel -- Nigel Roberts, LLB, FBCS Director, Island Networks Group Tel. +44 20 7100 4319 or +1 360 227 6027
-----Original Message----- From: Peter Dengate Thrush [mailto:barrister@chambers.gen.nz] Sent: Thursday, September 26, 2002 2:26 AM To: Jonathan Cohen; ga@dnso.org; cctld-discuss@wwtld.org; board@aptld.org Subject: Re: on politics and trust
Hi Jonathan Thanks. I assume this relates to ICP-1, and the allegations of changes to policy without proper processes being followed. The questions are simple, really. 1. Many people have pointed out that ICP-1 involves a change of policy. The recent FAQ issued by the staff, one assumes without Board involvement, contains some further nonsense. This, despite the time it takes, is being dealt to by experts.
2. The board resolution only adopts the numbering system of ICP-1, not its contents.
3. The question for the Board to satisfy itself is: do the contents of ICP-1 constitute new policy in any respect? Or, when they were first promulgated, did they?
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Hello Nigel, Thanks for the background.
The Framework of Interpretation (a guid to the construction of applicable ccTLD policy) was eventually formally adopted by the ICANN Board earlier this year.
Yes - I did vote for this resolution. Here is the text: " Whereas, the ccNSO Council established the Framework of Interpretation Working Group (FOIWG) in March 2011 with the Governmental Advisory Committee (GAC) to develop guidance to ICANN on how to implement existing policies and guidelines applicable to the delegation and re-delegation of ccTLDs. Whereas, in accordance with the charter, and after a long and intense consultation process of the FOIWG, community and others, the Framework of Interpretation recommendations were finalized in June 2014 at the London ICANN Public Meeting and submitted to the ccNSO and GAC to seek their acceptance of the recommendations. Whereas, the ccNSO Council approved the Framework of Interpretation at its meeting on 11 February 2015. Whereas, while the GAC has not formally approved the document, it considered the FOIWG's efforts as demonstrated in its 11 February 2015 Communiqué, and has not identified any recommendations that it does not support. Whereas, implementation of the recommendations will benefit from community input, including the ccNSO as well as consultation on an implementation plan. Resolved (2015.06.25.07), the Board directs the President and CEO, or his designee(s), to develop an implementation plan for the recommendations for community consideration through a public comment, and to implement the plan when finalized. Resolved (2015.06.25.08), the Board requests the ccNSO to appoint as soon as possible a small advisory team of subject matter experts to remain available to assist ICANN staff on implementation questions that arise during the development of the implementation plan, and inform ICANN of the appointments." I also note in the rationale: " In addition the ccNSO Council recommended the ICANN Board that certain documents including the GAC Principles 2000 (which the GAC superseded in 2005), ICANN's ICP1 (https://www.icann.org/resources/pages/delegation-2012-02-25-en) and News Memo 1 (http://www.iana.org/reports/1997/cctld-news-oct1997.html) should be archived and considered no longer used by ICANN staff"
Yet, only in the last couple of weeks, ICANN, the Corporation chooses to continue to put ICP-1 before the Appeal Court as having some status.
You raise a good point here. I will try to get an answer back on by the end of the week.
And THAT is the major question of accountability right there.
Got it. If the Board passes a resolution and agrees with the work put forward by the ccNSO - we do indeed need to make sure that we follow through on that commitment. I will follow this up now that I understand the issue that was initially raised by Eberhard. Regards, Bruce Tonkin
Hi Bruce - To your note, some information that I hope addresses the issue raised about ICP-1. I reviewed with our legal team the question regarding the reference to ICP1 in ICANN's Unopposed Motion for Leave to File a Supplement Appendix on appeal in the matter relating to the .IR, .SY and .KP ccTLDs. In short, ICANN has no intention of referencing ICP1 in our appellate brief or elsewhere in this matter. As to some history on this matter - prior to the adoption of the ccNSO's Framework of Interpretation, and the related ICANN Board resolution in June 2015 (https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#1. d <https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#1. d> ), all of the papers in this matter at the District Court level had already been completed, and ICANN had already prevailed. In ICANN¹s successful Motions to Quash the seven writs of attachment at the District Court level, ICANN did reference ICP-1 (see https://www.icann.org/en/system/files/files/ben-haim-motion-to-quash-writs-1 -29jul14-en.pdf <https://www.icann.org/en/system/files/files/ben-haim-motion-to-quash-writs- 1-29jul14-en.pdf> ). Following that filing, however, members of the ccNSO raised some concerns over ICANN¹s reference to ICP-1. Upon hearing those concerns, in October 2014 during the ICANN Public meeting in Los Angeles, members of ICANN¹s legal department met with Becky Burr and Keith Davidson to discuss the issue and understand the specific concerns. During that meeting, all agreed that ICANN will not rely on ICP-1 in the future, but agreed that it would not be useful to remove the existing reference to ICP-1 in the documents that had already been filed with the Court. By including it as part of Appendix on appeal, ICANN was merely providing the Court of Appeals with a complete record of the District Court proceedings (which appellants had failed to do) and included the documents and exhibits that were before the District Court, regardless of whether ICANN intended to cite to or rely on the documents in the Court of Appeals proceedings. Just to reiterate, we will not be referencing ICP-1 in our appellate papers. I'd also like to update on the actions taken with regards to the references to ICP-1 on the ICANN and IANA websites. First, we've removed the link to ICP-1 under the ³Policy, Procedures and Guides² section on www.iana.org/domains/root <http://www.iana.org/domains/root> . Second, we've archived the version of ICP-1 that the now deleted, above-referenced link took users to on ICANN¹s website. See http://archive.icann.org/en/policies/icp-1-archived.htm <http://mailer.samanage.com/wf/click?upn=X-2BoDL0DLC0vU1pzGK3Ew3MnoKvcm5UDRM 2ixYWg0jqzeUW-2BhuOm2BeKDG8ngCZzjG4euJawonuToQ4LEhgsG7A-3D-3D_H07ALFOi-2B9Dd 37-2FBDYnYURtXI0-2FxInFU8-2BRg8QGbkusrzxry73dUO-2FR8G1B3sIsOMEsKztf9oOb5TrKA zpvuyUUQsxFhna0CKEgECVN82iriql4USDDs3TJx4OIPFm9qifqJKse5wZolQNHGEV2SU4S51eWe 3tc-2FJYjRMh9YfoOOWuXZAD8ejYk8IPs2kZfSHvdSzHpRRr-2BeSZ-2BjnqUfuTAYiR62pqOwBt DXEsWdBSUGA3GD1kB8qWc8yQtmjdsyj6ZTBJuBOPwwE-2Bv7-2FwnuNS0wKisPG2nSp5uOoHKGSg g2lttyMXDBbm3WOwy-2FZwkJZwlAIoo-2FxLp7-2F7WCETcbVMsbrlvxfG7yvo5C3-2FH1m0ueA9 XIsl9RRJO-2ByPpx-2Ftg0dgvzvqj8FpXs0pXwGJSRewGGHc76tVRf5-2BES18cTeaa7BFxHh-2B zQ-2FJ8pZ8RCuQmu8xeE0p6Lc6ZzwtoKbtxZs6bOHGT1ifLI2F8bAyc5REUIu7kBv9V-2BH7sXbV Slfpkw> . Third, we are in the process of archiving any other versions of ICP-1 that reside on either website, as well as the CCTLD News Memo #1 (23 October 1997), and expect that archiving work to be completed by Friday, 25 September 2015. Fourth, we are also in the process of ensuring that the links to ICP-1 mentioned in past redelegation reports are redirected to the archived version of ICP-1, and we are endeavoring to have that also completed by Friday, 25 September 2015. Finally, I also wanted to share what I understand has transpired since the 25 June 2015 Board resolution regarding the recommendations to the Board about the Framework of Interpretation. Following the Board Resolution, in July 2015 the ccNSO designated Becky Burr and Keith Davidson as an advisory team to assist ICANN with the implementation process of the FOI recommendations. Keith contacted ICANN on that same day and suggested a face-to-face meeting in Los Angeles in September 2015 to discuss the planning for the implementation. In anticipation of the meeting, in early August 2015, ICANN sent to the ccNSO advisory team a request for clarification of eight points related to the recommendations, which was acknowledged by Keith in early September. The meeting between the ccNSO advisory team and members of ICANN¹s IANA Department took place 16 September as planned. At that meeting the teams reviewed the questions and the advisory team helped ICANN better understand how to interpret certain sections of the recommendations. At this time, ICANN is working on drafting a proposed implementation plan. I hope this addresses any concerns. Please let me know if you need anything further on this. Kind regards, Theresa On 9/22/15 1:39 AM, "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 Nigel,
Thanks for the background.
The Framework of Interpretation (a guid to the construction of applicable ccTLD policy) was eventually formally adopted by the ICANN Board earlier this year.
Yes - I did vote for this resolution. Here is the text:
" Whereas, the ccNSO Council established the Framework of Interpretation Working Group (FOIWG) in March 2011 with the Governmental Advisory Committee (GAC) to develop guidance to ICANN on how to implement existing policies and guidelines applicable to the delegation and re-delegation of ccTLDs.
Whereas, in accordance with the charter, and after a long and intense consultation process of the FOIWG, community and others, the Framework of Interpretation recommendations were finalized in June 2014 at the London ICANN Public Meeting and submitted to the ccNSO and GAC to seek their acceptance of the recommendations.
Whereas, the ccNSO Council approved the Framework of Interpretation at its meeting on 11 February 2015.
Whereas, while the GAC has not formally approved the document, it considered the FOIWG's efforts as demonstrated in its 11 February 2015 Communiqué, and has not identified any recommendations that it does not support.
Whereas, implementation of the recommendations will benefit from community input, including the ccNSO as well as consultation on an implementation plan.
Resolved (2015.06.25.07), the Board directs the President and CEO, or his designee(s), to develop an implementation plan for the recommendations for community consideration through a public comment, and to implement the plan when finalized.
Resolved (2015.06.25.08), the Board requests the ccNSO to appoint as soon as possible a small advisory team of subject matter experts to remain available to assist ICANN staff on implementation questions that arise during the development of the implementation plan, and inform ICANN of the appointments."
I also note in the rationale:
" In addition the ccNSO Council recommended the ICANN Board that certain documents including the GAC Principles 2000 (which the GAC superseded in 2005), ICANN's ICP1 (https://www.icann.org/resources/pages/delegation-2012-02-25-en) and News Memo 1 (http://www.iana.org/reports/1997/cctld-news-oct1997.html) should be archived and considered no longer used by ICANN staff"
Yet, only in the last couple of weeks, ICANN, the Corporation chooses to continue to put ICP-1 before the Appeal Court as having some status.
You raise a good point here. I will try to get an answer back on by the end of the week.
And THAT is the major question of accountability right there.
Got it. If the Board passes a resolution and agrees with the work put forward by the ccNSO - we do indeed need to make sure that we follow through on that commitment.
I will follow this up now that I understand the issue that was initially raised by Eberhard.
Regards, Bruce Tonkin
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Just as an update to my note below. I have raised this issue on a Board information call today. I expect that staff will provide an update on this list before the end of the week with actions taken to address the issues raised by Nigel and Eberhard. Regards, Bruce Tonkin -----Original Message----- From: Bruce Tonkin Sent: Tuesday, 22 September 2015 6:39 PM To: accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] ICANN's reliance on ICP-1 Hello Nigel, Thanks for the background.
The Framework of Interpretation (a guid to the construction of applicable ccTLD policy) was eventually formally adopted by the ICANN Board earlier this year.
Yes - I did vote for this resolution. Here is the text: " Whereas, the ccNSO Council established the Framework of Interpretation Working Group (FOIWG) in March 2011 with the Governmental Advisory Committee (GAC) to develop guidance to ICANN on how to implement existing policies and guidelines applicable to the delegation and re-delegation of ccTLDs. Whereas, in accordance with the charter, and after a long and intense consultation process of the FOIWG, community and others, the Framework of Interpretation recommendations were finalized in June 2014 at the London ICANN Public Meeting and submitted to the ccNSO and GAC to seek their acceptance of the recommendations. Whereas, the ccNSO Council approved the Framework of Interpretation at its meeting on 11 February 2015. Whereas, while the GAC has not formally approved the document, it considered the FOIWG's efforts as demonstrated in its 11 February 2015 Communiqué, and has not identified any recommendations that it does not support. Whereas, implementation of the recommendations will benefit from community input, including the ccNSO as well as consultation on an implementation plan. Resolved (2015.06.25.07), the Board directs the President and CEO, or his designee(s), to develop an implementation plan for the recommendations for community consideration through a public comment, and to implement the plan when finalized. Resolved (2015.06.25.08), the Board requests the ccNSO to appoint as soon as possible a small advisory team of subject matter experts to remain available to assist ICANN staff on implementation questions that arise during the development of the implementation plan, and inform ICANN of the appointments." I also note in the rationale: " In addition the ccNSO Council recommended the ICANN Board that certain documents including the GAC Principles 2000 (which the GAC superseded in 2005), ICANN's ICP1 (https://www.icann.org/resources/pages/delegation-2012-02-25-en) and News Memo 1 (http://www.iana.org/reports/1997/cctld-news-oct1997.html) should be archived and considered no longer used by ICANN staff"
Yet, only in the last couple of weeks, ICANN, the Corporation chooses to continue to put ICP-1 before the Appeal Court as having some status.
You raise a good point here. I will try to get an answer back on by the end of the week.
And THAT is the major question of accountability right there.
Got it. If the Board passes a resolution and agrees with the work put forward by the ccNSO - we do indeed need to make sure that we follow through on that commitment. I will follow this up now that I understand the issue that was initially raised by Eberhard. Regards, Bruce Tonkin
Thank you. el On 2015-09-22 16:36, Bruce Tonkin wrote:
Just as an update to my note below.
I have raised this issue on a Board information call today. I expect that staff will provide an update on this list before the end of the week with actions taken to address the issues raised by Nigel and Eberhard.
Regards, Bruce Tonkin
[...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Bruce, The difficulty I see here is that the .africa case was focused on whether ICANN violated its own procedures and the panel held unanimously that it did. There was also arguably "undue government influence" (against NTIA condition for transition) because the panel found unanimously that the NGPC (which was delegated full Board authority) failed to deal properly with the GAC recommendation in several respects. In this regard, the panel appeared to rule that based on its By-laws, ICANN has an obligation to investigate the nature and basis of GAC consensus advice and also under certain circumstances to obtain an expert opinion in relation to such advice. (I have no idea personally whether that is correct but the panel so held.) The panel also thought it inappropriate that ICANN filed arguments resisting live testimony before the panelists. They thus issued an interim ruling that the judges would be able to question the witnesses and ultimately did so. So the Board was seen by the panel as uncooperative in this respect. My only point here it that it may be oversimplifying things to characterize the .africa case as one where the first party complained, the second party denied, then the first party won and the Board complied. We all have a community interest in making sure that the Final Proposal as recommended to NTIA will pass scrutiny in this regard. In other words, Board compliance with ICANN’s own procedures and By-Laws must be RAPIDLY enforceable and not result in long, drawn-out proceedings like .africa. (And of course Alan keeps asking about enforcement of the Articles of Incorporation – which I think reads Core Mission and Values.) The beauty of the Sole Member structure is in the ability to exercise statutory Community Powers. The CCWG has been advised that the full scope of such powers is apparently only available within the membership structure so I think many of us are still struggling with the MEM proposal in that it appears to be duplicative of the IRP, but moves the issue to an SO/AC level . However, I had thought that IRP was already available to SOs and ACs – perhaps not? Can you please clarify again the FAQ as to why the MEM is not merely duplicative of the IRP? The other big issue lurking here is the time that existing procedures take in order to execute accountability measures. I think it is a significant weakness in the current structure and possibly also in the proposed MEM. Thank you for your diligence in responding to all these questions from the CCWG. I agree with others that this is a very useful process and am, as you know from previous posts, quite concerned about finalizing a proposal that will pass muster in Congress even in the face of the issues raised by .africa and .amazon (as well as contractual compliance.) In regard to the last item, there were many public comments to the effect that ICANN’s mission should include contractual compliance and this goes well beyond technical issues. (Disclosure: I participated in IPC comments on this point.) Clearly ICANN has a responsibility to enforce contracts that include obligations on the registries that are not technical in nature. For example, PIC enforcement rests within ICANN. The PIC Dispute Resolution Process is not an outside process occurring between two independent parties at WIPO or elsewhere. Further, it is clear there is interest on the part of community members to bring into play a Human Rights role for ICANN in its mission and core values which arguably could result in contractual obligations for the registries that would need to be enforced by ICANN, either via PIC or other mechanism. Thus, contractual enforcement must be a part of ICANN’s mission. Certainly this goes well beyond a “limited technical” role. These are tough issues. Thanks for your willingness to “dive deep” in the analysis. Anne Anne E. Aikman-Scalese Of Counsel Lewis Roca Rothgerber LLP | One South Church Avenue Suite 700 Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com | www.LRRLaw.com -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Saturday, September 19, 2015 4:38 PM To: CCWG Accountability Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case. The ICANN Board then complied with the outcome of the IRP. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
De ar All, I have cked the Matrix and the Memo There is several inconsistencies between the two Kavouss 2015-09-22 4:57 GMT+02:00 Aikman-Scalese, Anne <AAikman@lrrlaw.com>:
Bruce,
The difficulty I see here is that the .africa case was focused on whether ICANN violated its own procedures and the panel held *unanimously* that it did. There was also arguably "undue government influence" (against NTIA condition for transition) because the panel found unanimously that the NGPC (which was delegated full Board authority) failed to deal properly with the GAC recommendation in several respects. In this regard, the panel appeared to rule that based on its By-laws, ICANN has an obligation to investigate the nature and basis of GAC consensus advice and also under certain circumstances to obtain an expert opinion in relation to such advice. (I have no idea personally whether that is correct but the panel so held.)
The panel also thought it inappropriate that ICANN filed arguments resisting live testimony before the panelists. They thus issued an interim ruling that the judges would be able to question the witnesses and ultimately did so. So the Board was seen by the panel as uncooperative in this respect.
My only point here it that it may be oversimplifying things to characterize the .africa case as one where the first party complained, the second party denied, then the first party won and the Board complied. We all have a community interest in making sure that the Final Proposal as recommended to NTIA will pass scrutiny in this regard. In other words, Board compliance with ICANN’s own procedures and By-Laws must be RAPIDLY enforceable and not result in long, drawn-out proceedings like .africa. (And of course Alan keeps asking about enforcement of the Articles of Incorporation – which I think reads Core Mission and Values.)
The beauty of the Sole Member structure is in the ability to exercise statutory Community Powers. The CCWG has been advised that the full scope of such powers is apparently only available within the membership structure so I think many of us are still struggling with the MEM proposal in that it appears to be duplicative of the IRP, but moves the issue to an SO/AC level . However, I had thought that IRP was already available to SOs and ACs – perhaps not? Can you please clarify again the FAQ as to why the MEM is not merely duplicative of the IRP?
The other big issue lurking here is the time that existing procedures take in order to execute accountability measures. I think it is a significant weakness in the current structure and possibly also in the proposed MEM.
Thank you for your diligence in responding to all these questions from the CCWG. I agree with others that this is a very useful process and am, as you know from previous posts, quite concerned about finalizing a proposal that will pass muster in Congress even in the face of the issues raised by .africa and .amazon (as well as contractual compliance.)
In regard to the last item, there were many public comments to the effect that ICANN’s mission should include contractual compliance and this goes well beyond technical issues. (Disclosure: I participated in IPC comments on this point.) Clearly ICANN has a responsibility to enforce contracts that include obligations on the registries that are not technical in nature. For example, PIC enforcement rests within ICANN. The PIC Dispute Resolution Process is not an outside process occurring between two independent parties at WIPO or elsewhere. Further, it is clear there is interest on the part of community members to bring into play a Human Rights role for ICANN in its mission and core values which arguably could result in contractual obligations for the registries that would need to be enforced by ICANN, either via PIC or other mechanism. Thus, contractual enforcement must be a part of ICANN’s mission. Certainly this goes well beyond a “limited technical” role.
These are tough issues. Thanks for your willingness to “dive deep” in the analysis.
Anne
Anne E. Aikman-Scalese
Of Counsel
Lewis Roca Rothgerber LLP |
One South Church Avenue Suite 700
Tucson, Arizona 85701-1611
(T) 520.629.4428 | (F) 520.879.4725
AAikman@lrrlaw.com | www.LRRLaw.com
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Saturday, September 19, 2015 4:38 PM To: CCWG Accountability Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider
Hello Eberhard,
in the .AFRICA case at least (and I don't remember the older ones well) ICANN was not the model for cooperation, was it now?
Well as I understand it - the two sides put forward their case, and the complainant won the case.
The ICANN Board then complied with the outcome of the IRP.
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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Bruce: In regard to-- >> -Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader? Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law. The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel. Can you give an example of a situation where the community would want ICANN to breach the law? --of course I would never advocate that ICANN the corporation or its Board breach the law. But the ultimate arbiter of what is lawful, both as to relevant statutes as well as compliance with its AOI and Bylaws, is the judiciary. We cannot put ultimate trust in the judgment of private counsel for ICANN, or for those bringing a complaint. After all, it was not that long ago that ICANN legal circulated a memo during an ICANN meeting asserting that binding accountability for the community was not achievable under CA law. But then it turned out that it was, if you established a membership model. It appears that the SMM works from a legal standpoint, and one big question for CCWG, among many, is whether MEM would also have the requisite standing. In addition, in the Memo on Proposed Approach for Community Enforceability, it says: Possible Outcomes of MEM Arbitration: A MEM arbitration will result in a decision declaring that the challenged Board decision or action did or did not comply with ICANN's Fundamental Bylaws. The decision will be binding on the Board and subject to any appeal to the full Standing Panel. If the Board is found to have violated a Fundamental Bylaw, the Board is required to remedy that violation, within the Board's discretion. If the Board fails to remedy a violation, the MEM Issue Group may enforce the arbitration decision in the California courts. I am a lawyer, and the phrase " the Board is required to remedy that violation, within the Board's discretion" would appear to encompass a range of discretion in fashioning a remedy that goes beyond lawfulness considerations or fiduciary obligations. Further, even if those who brought the action were dissatisfied with the remedy fashioned by the Board, it is not clear that they would have any access to judicial review because the Board would not have failed to "remedy" the violation. I'm not trying to be picky, but it is very important to understand how these words would actually be implemented in practice. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Friday, September 18, 2015 8:35 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hello Phil,
What you seem to be saying is that if the Board does not follow an IRP decision, then direct access to court enforcement would not exist
Well firstly I think it is highly unlikely that the board would not follow an IRP decision. Speaking personally I don't see why you couldn't go to court enforcement for a binding IRP decision.
-What is the rationale for having MEM apply as an initial accountability mechanism only to Fundamental Bylaws?
I think the rationale was to create something purpose built for the broader community to dispute a decision by the Board. The rules of this mechanism could be adjusted over time to suit the community situation, compared to the situation of a single company. In some cases companies may use the dispute process simply to create a delay and a commercial advantage - so the rules for disputes could be different for the community versus single companies. The assumption I guess was that it would most likely be fundamental bylaws that would result in the community as a whole wanting to go to dispute resolution.
-Would the IRP in a post-transition world be advisory or binding upon the Board?
Yes it would be binding as per the CCWG proposal. See our response in section 14 of the matrix. As noted earlier the Board is broadly supportive of the improvements to the IRP.
-Does Board's ability to refuse to comply with IRP or MEM based upon the law be limited to fiduciary duty considerations or is it potentially broader?
Well I am not a lawyer - but I would assume it includes fiduciary duty considerations as well as that we need to comply with the law. The CCWG proposal had the language "to the extent permitted by law", and the Board agreed - so I assume that language came from the CCWG's legal counsel. Can you give an example of a situation where the community would want ICANN to breach the law? Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6081 / Virus Database: 4401/10465 - Release Date: 08/19/15 Internal Virus Database is out of date.
Hello Phil,
--of course I would never advocate that ICANN the corporation or its Board breach the law. But the ultimate arbiter of what is lawful, both as to relevant statutes as well as compliance with its AOI and Bylaws, is the judiciary. We cannot put ultimate trust in the judgment of private counsel for ICANN, or for those bringing a complaint.
OK - well how do you see that be resolved. I suppose a panel could make a recommendation that the Board thought would breach a law. Would the Board then put a case back to the panel to review (assuming they had relevant legal expertise in the law involved?) or would that go through some sort of separate appeal mechanisms to the decision of the panel?
After all, it was not that long ago that ICANN legal circulated a memo during an ICANN meeting asserting that binding accountability for the community was not achievable under CA law.
Which is odd in that we have binding arbitration in our registry agreements. Normally I would expect that a panel would first identify whether a bylaw had been breached, and then work with the parties to find a mutually acceptable resolution that is in keeping with the bylaws. Regards, Bruce Tonkin
Hi, On 21-Sep-15 04:47, Bruce Tonkin wrote:
After all, it was not that long ago that ICANN legal circulated a memo during an ICANN meeting asserting that binding accountability for the community was not achievable under CA law. Which is odd in that we have binding arbitration in our registry agreements.
Is that perhaps part of the contractual law that pertains between persons. Law that is not part of the current relationship between the community and the corporation. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
On 18 Sep 2015, at 10:20, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws.
Yes the ICANN Board also agrees that the IRP still applies to all bylaws. It can be used by individuals, companies or groups to bring actions.
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. The consequence of this would be that a domain registrant harmed by a new ICANN policy outside the scope of the Mission would have no recourse. They would have to hope that the policy would be challenged by ICANN constituent elements in the MEM, which is highly unlikely if the policy was developed and supported by the community. I don't think this is acceptable. ICANN needs to be kept within its limited Mission, not just kept to such excess as the SOs may tolerate.
Do you really want to give 300 Million domain name holders each an individual recourse. el -- Sent from Dr Lisse's iPad mini
On 19 Sep 2015, at 12:25, Malcolm Hutty <malcolm@linx.net> wrote:
On 18 Sep 2015, at 10:20, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
The CCWG Draft Proposal provides the IRP to allow the community to ensure that ICANN is following its Bylaws.
Yes the ICANN Board also agrees that the IRP still applies to all bylaws. It can be used by individuals, companies or groups to bring actions.
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties.
The consequence of this would be that a domain registrant harmed by a new ICANN policy outside the scope of the Mission would have no recourse. They would have to hope that the policy would be challenged by ICANN constituent elements in the MEM, which is highly unlikely if the policy was developed and supported by the community.
I don't think this is acceptable. ICANN needs to be kept within its limited Mission, not just kept to such excess as the SOs may tolerate.
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On 2015-09-19 16:35, Dr Eberhard W Lisse wrote:
Do you really want to give 300 Million domain name holders each an individual recourse.
The population of the European Union is 508 million. The population of the USA is 321 million. Every citizen of these lands has a right to an "individual recourse" against their government (if it acts unconstitutionally), or against the perpetrator of any wrongful action that harms their legally protected rights. We shouldn't be intimidated by big numbers. Why should ICANN be immunised from the consequences of its actions? Nobody else is. -- 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
There are similar numbers not having such recourse against their respective governments, but we are not dealing with Nation-States, we are dealing with a corporation.. Notwithstanding that its acts or omissions may affect Billions. We need to get this workable and inject some reality into this debate instead of tossing nonsense around. el -- Sent from Dr Lisse's iPad mini
On 19 Sep 2015, at 17:51, Malcolm Hutty <malcolm@linx.net> wrote:
On 2015-09-19 16:35, Dr Eberhard W Lisse wrote: Do you really want to give 300 Million domain name holders each an individual recourse.
The population of the European Union is 508 million. The population of the USA is 321 million.
Every citizen of these lands has a right to an "individual recourse" against their government (if it acts unconstitutionally), or against the perpetrator of any wrongful action that harms their legally protected rights.
We shouldn't be intimidated by big numbers.
Why should ICANN be immunised from the consequences of its actions? Nobody else is.
-- 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 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hello Malcolm,
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties.
Where do you get that impression from our submission? The current state of IRP is: "Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action." In our submission the Board stated: "The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
The consequence of this would be that a domain registrant harmed by a new ICANN policy outside the scope of the Mission would have no recourse.
No the domain name registrant or a collection of registrants has the right to lodge and IRP.
They would have to hope that the policy would be challenged by ICANN constituent elements in the MEM, which is highly unlikely if the policy was developed and supported by the community.
The MEM is in addition to the IRP not a replacement.
ICANN needs to be kept within its limited Mission, not just kept to such excess as the SOs may tolerate.
Agreed. Note though if the bottom-up policy development process is working properly - it shouldn't come to the point that the Board would be approving a policy that is outside of its mission - and thus requiring an IRP to over-turn. I would hope that the SOs and ACs would identify that much earlier in the process. Regards, Bruce Tonkin
On 20/09/2015 00:48, Bruce Tonkin wrote:
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is: "Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action." That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries. For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad. 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 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Bruce Here's my impression of where the Board is at. I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve. I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history. In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN". I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road. On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that. Could you perhaps provide some indications of what might be leading you to your perception? Cheers, Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Nice try. But I'll bite anyway . . . ________________________ Perhaps. I can see nothing that THAT IS DESIGNED TO lead to the perception that the board disagrees with the strategic accountability goal. But plenty that raises the suspicion that it is designed NOT to lead to that perception. What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid Why did you buy a dog, if you are going to bark yourself? THIS is one of the things that leads me to the "history repeating itself" suspicion. Because the next thing we will be told: "We have to do this (insert defective plan of your choice here), because there is no time to do anything else, and if we wait any longer, transition will never happen because (election/regime change)". The problem is as I see it is this. Once the transition happens, there is no incentive for anyone to fix anything that we don't like now. ICANN will, in law, simply be a private company, entirely owned by its Board. Nigel On 20/09/15 09:46, Chris Disspain wrote:
Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that.
Could you perhaps provide some indications of what might be leading you to your perception?
Cheers,
Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi Nigel, Just landed in the U.S. so will respond as soon as I can. Meanwhile, a question for you. What are your thoughts on the current CCWG proposal? Would you sign off on it? Chris Disspain CEO - auDA
On 20 Sep 2015, at 19:40, Nigel Roberts <nigel@channelisles.net> wrote:
Nice try. But I'll bite anyway . . .
________________________
Perhaps.
I can see nothing that THAT IS DESIGNED TO lead to the perception that the board disagrees with the strategic accountability goal.
But plenty that raises the suspicion that it is designed NOT to lead to that perception.
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
Why did you buy a dog, if you are going to bark yourself?
THIS is one of the things that leads me to the "history repeating itself" suspicion.
Because the next thing we will be told:
"We have to do this (insert defective plan of your choice here), because there is no time to do anything else, and if we wait any longer, transition will never happen because (election/regime change)".
The problem is as I see it is this.
Once the transition happens, there is no incentive for anyone to fix anything that we don't like now.
ICANN will, in law, simply be a private company, entirely owned by its Board.
Nigel
On 20/09/15 09:46, Chris Disspain wrote: Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that.
Could you perhaps provide some indications of what might be leading you to your perception?
Cheers,
Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
> Except that the Board disagrees with our proposal to extend > access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Surely that isn't the righ question -- especially since the CCWG proposal is still in development. It only distracts Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs? I think I know which one Nigel prefers :-) 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: Chris Disspain [mailto:ceo@auda.org.au] Sent: Sunday, September 20, 2015 2:37 PM To: Nigel Roberts <nigel@channelisles.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hi Nigel, Just landed in the U.S. so will respond as soon as I can. Meanwhile, a question for you. What are your thoughts on the current CCWG proposal? Would you sign off on it? Chris Disspain CEO - auDA
On 20 Sep 2015, at 19:40, Nigel Roberts <nigel@channelisles.net> wrote:
Nice try. But I'll bite anyway . . .
________________________
Perhaps.
I can see nothing that THAT IS DESIGNED TO lead to the perception that the board disagrees with the strategic accountability goal.
But plenty that raises the suspicion that it is designed NOT to lead to that perception.
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
Why did you buy a dog, if you are going to bark yourself?
THIS is one of the things that leads me to the "history repeating itself" suspicion.
Because the next thing we will be told:
"We have to do this (insert defective plan of your choice here), because there is no time to do anything else, and if we wait any longer, transition will never happen because (election/regime change)".
The problem is as I see it is this.
Once the transition happens, there is no incentive for anyone to fix anything that we don't like now.
ICANN will, in law, simply be a private company, entirely owned by its Board.
Nigel
On 20/09/15 09:46, Chris Disspain wrote: Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that.
Could you perhaps provide some indications of what might be leading you to your perception?
Cheers,
Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
> Except that the Board disagrees with our proposal to extend > access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Let us remember that this entire transition exercise began because it was deemed by some to be necessary, post-Snowden revelations, for the U.S. to transfer its (minor and clerical, although not without substantial and sobering backstop effect) review role regarding root zone changes to the global multistakeholder community. And that this was allegedly necessary to save the multistakeholder model and prevent its transition to one of government-dominated multilateralism. Well, the CCWG proposal is the output of the multistakeholder community -- and is perhaps the highest expression of the capabilities of the MSM to date. It is a remarkable piece of work to be produced so quickly. As for the Board's proposal, it is the product of the Board and its lawyers. It may be sincere and well-intentioned, but it is not the product of a multistakeholder process. Clearly, the only answer consistent with devotion to the MSM is to adopt the CCWG proposal as the baseline. And while individual components of the Board's Comments Matrix may improve and enhance the CCWG proposal and certainly should be considered , on the central question of whether to go with the SMM or the MEM my personal view is that the burden of proof is on the Board and any other MEM proponents to demonstrate that it better enables the accountability desired by the community than the SMM. If it does not it should be rejected, as this is no time for the CCWG to be diverted from project completion. That is especially true because the MEM is just as untested as the SMM, and the Board's stated concerns about instability, capture, or analysis could just as well apply to it -- none of us know how these theories will actually play out in practice. And it is further true because there is not a single instance in which the Board has asserted that the CCWG's Proposal is in any way unlawful; much less one that will be at odds with the Global Public Interest, which under the CCWG's Charter is the standard for triggering mandatory consultation with the CCWG over the final proposal. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Sunday, September 20, 2015 9:35 PM To: 'Chris Disspain'; 'Nigel Roberts' Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Surely that isn't the righ question -- especially since the CCWG proposal is still in development. It only distracts Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs? I think I know which one Nigel prefers :-) 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: Chris Disspain [mailto:ceo@auda.org.au] Sent: Sunday, September 20, 2015 2:37 PM To: Nigel Roberts <nigel@channelisles.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hi Nigel, Just landed in the U.S. so will respond as soon as I can. Meanwhile, a question for you. What are your thoughts on the current CCWG proposal? Would you sign off on it? Chris Disspain CEO - auDA
On 20 Sep 2015, at 19:40, Nigel Roberts <nigel@channelisles.net> wrote:
Nice try. But I'll bite anyway . . .
________________________
Perhaps.
I can see nothing that THAT IS DESIGNED TO lead to the perception that the board disagrees with the strategic accountability goal.
But plenty that raises the suspicion that it is designed NOT to lead to that perception.
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
Why did you buy a dog, if you are going to bark yourself?
THIS is one of the things that leads me to the "history repeating itself" suspicion.
Because the next thing we will be told:
"We have to do this (insert defective plan of your choice here), because there is no time to do anything else, and if we wait any longer, transition will never happen because (election/regime change)".
The problem is as I see it is this.
Once the transition happens, there is no incentive for anyone to fix anything that we don't like now.
ICANN will, in law, simply be a private company, entirely owned by its Board.
Nigel
On 20/09/15 09:46, Chris Disspain wrote: Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that.
Could you perhaps provide some indications of what might be leading you to your perception?
Cheers,
Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
> Except that the Board disagrees with our proposal to extend > access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
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Hello Phil,
As for the Board's proposal, it is the product of the Board and its lawyers. It may be sincere and well-intentioned, but it is not the product of a multistakeholder process.
No - but it is an input into the multi-stakeholder process from one of the stakeholders. The Board is hoping that the proposal will continue to evolve based on the inputs it receives from all stakeholders that have the time to submit comments. Regards, Bruce Tonkin Clearly, the only answer consistent with devotion to the MSM is to adopt the CCWG proposal as the baseline. And while individual components of the Board's Comments Matrix may improve and enhance the CCWG proposal and certainly should be considered , on the central question of whether to go with the SMM or the MEM my personal view is that the burden of proof is on the Board and any other MEM proponents to demonstrate that it better enables the accountability desired by the community than the SMM. If it does not it should be rejected, as this is no time for the CCWG to be diverted from project completion. That is especially true because the MEM is just as untested as the SMM, and the Board's stated concerns about instability, capture, or analysis could just as well apply to it -- none of us know how these theories will actually play out in practice. And it is further true because there is not a single instance in which the Board has asserted that the CCWG's Proposal is in any way unlawful; much less one that will be at odds with the Global Public Interest, which under the CCWG's Charter is the standard for triggering mandatory consultation with the CCWG over the final proposal. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Sunday, September 20, 2015 9:35 PM To: 'Chris Disspain'; 'Nigel Roberts' Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Surely that isn't the righ question -- especially since the CCWG proposal is still in development. It only distracts Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs? I think I know which one Nigel prefers :-) 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: Chris Disspain [mailto:ceo@auda.org.au] Sent: Sunday, September 20, 2015 2:37 PM To: Nigel Roberts <nigel@channelisles.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider Hi Nigel, Just landed in the U.S. so will respond as soon as I can. Meanwhile, a question for you. What are your thoughts on the current CCWG proposal? Would you sign off on it? Chris Disspain CEO - auDA
On 20 Sep 2015, at 19:40, Nigel Roberts <nigel@channelisles.net> wrote:
Nice try. But I'll bite anyway . . .
________________________
Perhaps.
I can see nothing that THAT IS DESIGNED TO lead to the perception that the board disagrees with the strategic accountability goal.
But plenty that raises the suspicion that it is designed NOT to lead to that perception.
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
Why did you buy a dog, if you are going to bark yourself?
THIS is one of the things that leads me to the "history repeating itself" suspicion.
Because the next thing we will be told:
"We have to do this (insert defective plan of your choice here), because there is no time to do anything else, and if we wait any longer, transition will never happen because (election/regime change)".
The problem is as I see it is this.
Once the transition happens, there is no incentive for anyone to fix anything that we don't like now.
ICANN will, in law, simply be a private company, entirely owned by its Board.
Nigel
On 20/09/15 09:46, Chris Disspain wrote: Hello Nigel,
......the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I can see a number of examples of the board, as part of the community, disagreeing with specific aspects of the CCWG proposals but I can see nothing that might lead to the perception that the board disagrees with the strategic accountability goal. Unless, of course, the mere disagreement on a specific aspect is to be taken as evidence of that.
Could you perhaps provide some indications of what might be leading you to your perception?
Cheers,
Chris
On 20 Sep 2015, at 18:35, Nigel Roberts <nigel@channelisles.net> wrote:
Bruce
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
I don't see much evidence of the "we are all ICANN" tree-hugging that, at least, to some extent, is required from time to time in the organisation's history.
In the last 10 years I've become able to argue the finer points of legal construction with the best of them, but that's not what, I feel, is needed now. But that's what seems to be going on. I feel ICANN's legal advisers are following their normal instincts -- "protect the client" -- and the client is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared to listen to argument on that point') but I think that, on current perceptions, that is an uphill road.
On 20/09/15 09:18, Malcolm Hutty wrote:
On 20/09/2015 00:48, Bruce Tonkin wrote:
> Except that the Board disagrees with our proposal to extend > access to the IRP to all materially affected parties. Where do you get that impression from our submission?
The current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action."
No, the current state of IRP is:
"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."
That effectively excludes non-contracted parties, who experience ICANN policies "as a result of third parties acting in line with the Board's action" i.e. when ICANN policy is applied to them by Registries.
For the IRP to be meaningful to domain registrants, "materially affected" must include materially affected by an ICANN policy.
In our submission the Board stated:
"The ICANN Board agrees that any person/group/entity materially affected by an alleged violation of ICANN's Bylaws or Articles of Incorporation should have the right to file a complaint under the IRP."
If the Board is willing to remove the offending qualification above, then I am glad.
Malcolm.
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Hello Paul,
Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs?
The Board was working of the assumption that the CCWG document published for public comment was the base line. Our comments and recommendations were intended to build on that proposal. The Board's input can then be considered along with all the comments provided in the public comment process. We are participating as one of the stakeholders in the multi-stakeholder process. Regards, Bruce Tonkin
Thanks for the clarification which helps me resist the perception that the Board's is making its own proposal in addition to providing feedback on the CCWG proposal. On 21/09/15 08:57, Bruce Tonkin wrote:
Hello Paul,
Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs?
The Board was working of the assumption that the CCWG document published for public comment was the base line.
Our comments and recommendations were intended to build on that proposal. The Board's input can then be considered along with all the comments provided in the public comment process. We are participating as one of the stakeholders in the multi-stakeholder process.
Regards, Bruce Tonkin
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On 20/09/15 19:37, Chris Disspain wrote:
Meanwhile, a question for you. What are your thoughts on the current CCWG proposal? Would you sign off on it?
No. See https://comments.ianacg.org/pdf/submission/submission86.pdf
Hello Nigel,
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
Yes - we could indeed have simply posted a note saying what sections of the proposal we didn't like. After the first public comment period we took the approach of asking lots of questions, but my sense was this didn't help in any way. However we thought it would be much more constructive to make positive suggestions in each case where we weren't in complete agreement. We spent a lot of time trying to be as explicit as possible with suggestions we thought met the same goal but was an alternative for the CCWG to consider. The only area I think you could call a "competing bid" - was to propose how to achieve enforceability without changing to a single member model. We assumed that the common goal though was to increase accountability and ensure it was enforceable. Regards, Bruce Tonkin
Two replies to specific comments At 20/09/2015 05:40 AM, Nigel Roberts wrote:
Nice try. But I'll bite anyway . . .
.....
What I find interesting is that the Board, instead of merely pointing out the disagreements or potential workability issues with the CCWG's plan, has put together its own competing bid
This is a Catch-22 that I have found myself in several times during the CWG-IANA and the CCWG-Accountability. If you criticize something without providing an alternative it is either ignored or discarded because it the view of some, there is no viable alternative. If you provide an alternative you are criticized for not following due process in developing bottom-up ideas.
.....
Once the transition happens, there is no incentive for anyone to fix anything that we don't like now.
ICANN will, in law, simply be a private company, entirely owned by its Board.
Except that at the very least, we will have the ability to get rid of a Board (or parts of it) that refuses to agree with where we want to go. Alan
Hello Nigel,
Here's my impression of where the Board is at.
I am starting to get the perception that ICANN ("the corporation") seems to be positioning itself as in disagreement with the strategic goal of ensuring the corporation becomes (I was going to say 'remains' but that's entirely inaccurate) accountable to the people it was designed to serve.
That for sharing your impression. It is not my personal impression from discussions with Board members. The chair of the board has repeatedly spoken in support of additional accountability, and this is apparent in the recent blog postings from the chair. I do accept though that it needs to be matched by actions - and in particular bylaws changes that make it more accountable. I think the big difference is that the Board wants to achieve the additional accountability in as simple a way as possible. We spent many hours going through the CWG proposal, and provided detailed feedback section by section. Just because we have provided a lot of feedback doesn't mean that we don't share the same goal. The vast majority of our responses fall into the category of agree, or agree in principle with some suggestions for an alternative implementation. Regards, Bruce Tonkin
On 19-Sep-15 19:48, Bruce Tonkin wrote:
Except that the Board disagrees with our proposal to extend access to the IRP to all materially affected parties. Where do you get that impression from our submission? The consequence of this would be that a domain registrant harmed by a new ICANN policy outside the scope of the Mission would have no recourse.
No the domain name registrant or a collection of registrants has the right to lodge and IRP.
Perhaps my confusion comes from page 24 of the Comments Matrix that includes: "There need to be clear lines to keep the IRP separate from operational matters." So the question comes down to understand whether most of the registrant needs for redress come from operational matters. As I understand the need from registrants, both commercial and non-commercial, it is for accessible availability of a redress mechanism for when their interests are affected by the operational actions of ICANN. They are not related to policy matters, except in so far as the policies and their spirit is being ignored by operational practice.
They would have to hope that the policy would be challenged by ICANN constituent elements in the MEM, which is highly unlikely if the policy was developed and supported by the community. The MEM is in addition to the IRP not a replacement.
I had not properly understood this at the time i wrote. I had understood that it was going to taking on some of the responsibilities of the IRP.
ICANN needs to be kept within its limited Mission, not just kept to such excess as the SOs may tolerate. Agreed.
Note though if the bottom-up policy development process is working properly - it shouldn't come to the point that the Board would be approving a policy that is outside of its mission - and thus requiring an IRP to over-turn. I would hope that the SOs and ACs would identify that much earlier in the process.
This only works if you assume that the Board does not, on its own, make policy when it decides it needs to. A decade's experience working with the Board convinces me that the Board does feel free to make policy, or to allow the staff to make policy implicitly by its actions, when it 'feels' that it is necessary. Not all policy comes from the SOs, though of course it should. thans
Regards, Bruce Tonkin
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Hello Avri,
"There need to be clear lines to keep the IRP separate from operational matters."
I think part of the approach is that IRP is a fairly heavy weight process that is designed for breaches of bylaws and articles of association, and that we should build in appeal/complaint mechanisms closer to where the issues occur. For example, for new gTLD processes - we used review panels - but I think we also should build in appeals for the decisions of those panels - so the affected parties don't need to go to reconsideration or IRP. If a member of the intellectual property community raises a compliance issue with the compliance team - and they feel that no action has been taken - there should be a way to escalate this and have it dealt with. A normal escalation path - could be to the manger, and then ultimately to the CEO. If the CEO doesn't act then the Board etc. If a member of the community disputes a decision regarding a travel allowance - there should be way to escalate a dispute etc.
This only works if you assume that the Board does not, on its own, make policy when it decides it needs to. A decade's experience working with the Board convinces me that the Board does feel free to make policy, or to allow the staff to make policy implicitly by its actions, when it 'feels' that it is necessary.
Yes - I accept that criticism . I am a strong believer in pushing policy decisions back to the relevant body - but it also requires some timeliness in being able to refine policies as issues evolve. Regards, Bruce Tonkin
participants (17)
-
Aikman-Scalese, Anne -
Alan Greenberg -
Avri Doria -
Bruce Tonkin -
Burr, Becky -
Chris Disspain -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Drazek, Keith -
Kavouss Arasteh -
Malcolm Hutty -
Nigel Roberts -
Paul Rosenzweig -
Phil Corwin -
Seun Ojedeji -
Theresa Swinehart -
Thomas Rickert