Which Board's proposal pls ? Kavouss 2016-02-15 17:56 GMT+01:00 Thomas Rickert <rickert@anwaelte.de>:

Dear Paul, yes, that is an item that is going to be discussed.

Best, Thomas

--- rickert.net

Am 15.02.2016 um 16:43 schrieb Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:

<image002.gif>

Dear Co-Chairs

Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to …

Paul

Paul Rosenzweig

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*From:* Brenda Brewer [mailto:brenda.brewer@icann.org <brenda.brewer@icann.org>] *Sent:* Monday, February 15, 2016 8:03 AM *To:* CCWG-Accountability <accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Dear all,

In preparation for your call #84 <https://community.icann.org/x/AAt1Aw> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter <http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+ACCT+Meeting&i...>), see below a proposed agenda:

1. Opening Remarks

2. Comments on Supplementary Report

3. Budget

4. AOC

*Adobe Connect: *https://icann.adobeconnect.com/accountability/

Thank you!

Kind regards,

Brenda

_______________________________________________ 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

Paul - Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board. I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible. That said, I agree we should discuss the proposal on our call tomorrow. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear Co-Chairs Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> [cid:image003.png@01D167DD.A6F65590]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Brenda Brewer [mailto:brenda.brewer@icann.org] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear all, In preparation for your call #84<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda: 1. Opening Remarks 2. Comments on Supplementary Report 3. Budget 4. AOC Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...> Thank you! Kind regards, Brenda

Not sure that Board comments are being fast tracked, but considered You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Reply-To: "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: Monday, February 15, 2016 at 2:08 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Hi Becky, I have two concerns here that I hope those with expertise in these specific areas can help me put to rest: ?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur? 2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice when said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation). ?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise. Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this? ? Best, Ed Morris ________________________________ From: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Sent: Monday, February 15, 2016 6:26 PM To: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "Brenda Brewer" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, "CCWG-Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Paul - Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board. I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible. That said, I agree we should discuss the proposal on our call tomorrow. Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear Co-Chairs Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> [frmReadMail_Attachment.aspx?folder=Inbox&uid=23902&partid=5&filename=image003.png&user=egmorris1&mapped=False]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Brenda Brewer [mailto:brenda.brewer@icann.org] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear all, In preparation for your call #84<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda: 1. Opening Remarks 2. Comments on Supplementary Report 3. Budget 4. AOC Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...> Thank you! Kind regards, Brenda

Becky, The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out. Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened. Thanks, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, February 15, 2016 2:22 PM To: egmorris1@toast.net; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Not sure that Board comments are being fast tracked, but considered You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Reply-To: "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: Monday, February 15, 2016 at 2:08 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Hi Becky, I have two concerns here that I hope those with expertise in these specific areas can help me put to rest: ?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur? 2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice when said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation). ?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise. Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this? ? Best, Ed Morris ________________________________ From: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Sent: Monday, February 15, 2016 6:26 PM To: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "Brenda Brewer" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, "CCWG-Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Paul - Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board. I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible. That said, I agree we should discuss the proposal on our call tomorrow. Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC [Image removed by sender.] Dear Co-Chairs Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> [Image removed by sender.]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Brenda Brewer [mailto:brenda.brewer@icann.org] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear all, In preparation for your call #84<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda: 1. Opening Remarks 2. Comments on Supplementary Report 3. Budget 4. AOC Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...> Thank you! Kind regards, Brenda

My views echo yours, Becky. Thanks Brett for picking up on this. Ed Sent from my iPhone

On 16 Feb 2016, at 16:58, Burr, Becky <Becky.Burr@neustar.biz> wrote:

Brett,

My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?

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

Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.

I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.

Becky

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

From: <Schaefer>, Brett <Brett.Schaefer@heritage.org> Date: Tuesday, February 16, 2016 at 9:38 AM To: Becky Burr <becky.burr@neustar.biz>, "egmorris1@toast.net" <egmorris1@toast.net>, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, "brenda.brewer@icann.org" <brenda.brewer@icann.org>, Accountability Community <accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Becky,

The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out.

Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened.

Thanks,

Brett

BrettSchaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, February 15, 2016 2:22 PM To: egmorris1@toast.net; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Not sure that Board comments are being fast tracked, but considered

You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP

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

From: Edward Morris <egmorris1@toast.net> Reply-To: "egmorris1@toast.net" <egmorris1@toast.net> Date: Monday, February 15, 2016 at 2:08 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, "brenda.brewer@icann.org" <brenda.brewer@icann.org>, Accountability Community <accountability-cross-community@icann.org>, Becky Burr <becky.burr@neustar.biz> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Hi Becky,

I have two concerns here that I hope those with expertise in these specific areas can help me put to rest:

?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur?

2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice when said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation).

?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise.

Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this? ?

Best,

Ed Morris

From: "Burr, Becky" <Becky.Burr@neustar.biz> Sent: Monday, February 15, 2016 6:26 PM To: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com>, "Brenda Brewer" <brenda.brewer@icann.org>, "CCWG-Accountability" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Paul -

Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board.

I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible.

That said, I agree we should discuss the proposal on our call tomorrow.

Becky

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

From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org" <brenda.brewer@icann.org>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

<~WRD000.jpg> Dear Co-Chairs

Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to …

Paul

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

From: Brenda Brewer [mailto:brenda.brewer@icann.org] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Dear all, In preparation for your call #84 – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter), see below a proposed agenda: 1. Opening Remarks

2. Comments on Supplementary Report

3. Budget

4. AOC

Adobe Connect: https://icann.adobeconnect.com/accountability/

Thank you! Kind regards, Brenda

<~WRD000.jpg> <image001.jpg>

I agree with my colleagues above. Greg On Tue, Feb 16, 2016 at 12:57 PM, Robin Gross <robin@ipjustice.org> wrote:

+1

Robin

On Feb 16, 2016, at 9:41 AM, Edward Morris <egmorris1@toast.net> wrote:

My views echo yours, Becky. Thanks Brett for picking up on this.

Ed

Sent from my iPhone

On 16 Feb 2016, at 16:58, Burr, Becky <Becky.Burr@neustar.biz> wrote:

Brett,

My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases –* and isn’t that what it means for the IRP to be binding*?

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

*Bruce – I think we need clarification from you as to the Board’s intent*. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.

I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.

Becky

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

From: <Schaefer>, Brett <Brett.Schaefer@heritage.org> Date: Tuesday, February 16, 2016 at 9:38 AM To: Becky Burr <becky.burr@neustar.biz>, "egmorris1@toast.net" < egmorris1@toast.net>, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>, "brenda.brewer@icann.org" < brenda.brewer@icann.org>, Accountability Community < accountability-cross-community@icann.org> Subject: RE: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Becky,

The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out.

Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened.

Thanks,

Brett

------------------------------ BrettSchaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMGaQ&c...>

*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Burr, Becky *Sent:* Monday, February 15, 2016 2:22 PM *To:* egmorris1@toast.net; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability *Subject:* Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Not sure that Board comments are being fast tracked, but considered

You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP

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

*From: *Edward Morris <egmorris1@toast.net> *Reply-To: *"egmorris1@toast.net" <egmorris1@toast.net> *Date: *Monday, February 15, 2016 at 2:08 PM *To: *Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, " brenda.brewer@icann.org" <brenda.brewer@icann.org>, Accountability Community <accountability-cross-community@icann.org>, Becky Burr < becky.burr@neustar.biz> *Subject: *Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Hi Becky,

I have two concerns here that I hope those with expertise in these specific areas can help me put to rest:

?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur?

2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice *when* said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation).

?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise.

Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this? ?

Best,

Ed Morris

------------------------------ *From*: "Burr, Becky" <Becky.Burr@neustar.biz> *Sent*: Monday, February 15, 2016 6:26 PM *To*: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com>, "Brenda Brewer" <brenda.brewer@icann.org>, "CCWG-Accountability" < accountability-cross-community@icann.org> *Subject*: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Paul -

Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board.

I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible.

That said, I agree we should discuss the proposal on our call tomorrow.

Becky

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

*From: *Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> *Date: *Monday, February 15, 2016 at 10:43 AM *To: *"brenda.brewer@icann.org" <brenda.brewer@icann.org>, Accountability Community <accountability-cross-community@icann.org> *Subject: *Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

<~WRD000.jpg> Dear Co-Chairs

Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to …

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <image001.jpg> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...>

*From:* Brenda Brewer [mailto:brenda.brewer@icann.org <brenda.brewer@icann.org>] *Sent:* Monday, February 15, 2016 8:03 AM *To:* CCWG-Accountability <accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Dear all, In preparation for your call #84 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda:

1. Opening Remarks

2. Comments on Supplementary Report

3. Budget

4. AOC *Adobe Connect: *https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...>

Thank you! Kind regards, Brenda

<~WRD000.jpg>

<image001.jpg>

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

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+1as well -- Paul Rosenzweig Sent from myMail app for Android Tuesday, 16 February 2016, 01:12PM -05:00 from Matthew Shears < mshears@cdt.org> :

Yes, likewise. 

On 2/16/2016 6:10 PM, Greg Shatan wrote:

...

I agree with my colleagues above.

Greg

On Tue, Feb 16, 2016 at 12:57 PM, Robin Gross < robin@ipjustice.org > wrote:

...

+1

Robin

...

On Feb 16, 2016, at 9:41 AM, Edward Morris < egmorris1@toast.net > wrote: My views echo yours, Becky. Thanks Brett for picking up on this.

Ed

Sent from my iPhone

On 16 Feb 2016, at 16:58, Burr, Becky < Becky.Burr@neustar.biz > wrote:

...

Brett,

My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles.  In that case, I think that an IRP is the most appropriate, least disruptive approach.  I can live with the notion that the community would respect the final determination of an IRP in such cases –   and isn’t that what it means for the IRP to be binding ?

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

Bruce – I think we need clarification from you as to the Board’s intent .  One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles.  This reading would – at least theoretically – materially narrow the spill the board power.  So I think Brett is right on the principle.  But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.

I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.

Becky

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

From:   <Schaefer>, Brett < Brett.Schaefer@heritage.org > Date:   Tuesday, February 16, 2016 at 9:38 AM To:   Becky Burr < becky.burr@neustar.biz >, " egmorris1@toast.net " < egmorris1@toast.net >, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com >, " brenda.brewer@icann.org " < brenda.brewer@icann.org >, Accountability Community < accountability-cross-community@icann.org > Subject:   RE: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Becky,   The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out.   Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened.     Thanks,   Brett      

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

From:   accountability-cross-community-bounces@icann.org   [ mailto:accountability-cross-community-bounces@icann.org ]   On Behalf Of   Burr, Becky Sent:   Monday, February 15, 2016 2:22 PM To:   egmorris1@toast.net ; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability Subject:   Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC   Not sure that Board comments are being fast tracked, but considered   You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP   J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932     Mobile: +1.202.352.6367   / neustar.biz   From:   Edward Morris < egmorris1@toast.net > Reply-To:   " egmorris1@toast.net " < egmorris1@toast.net > Date:   Monday, February 15, 2016 at 2:08 PM To:   Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com >, " brenda.brewer@icann.org " < brenda.brewer@icann.org >, Accountability Community < accountability-cross-community@icann.org >, Becky Burr < becky.burr@neustar.biz > Subject:   Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC   Hi Becky,   I have two concerns here that I hope those with expertise in these specific areas can help me put to rest:     ?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted,  do not our rules mandate consideration at two meetings before any alteration to our proposal should occur?    2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice  when   said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation).    ?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur?  I'm not sure that's wise.   Of course, as Becky noted I don't anticipate this aspect of our proposal  will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself  is outside it's remit...do we really want to do this? ?   Best,   Ed Morris          ---------------------------------------------------------------------- From : "Burr, Becky" < Becky.Burr@neustar.biz > Sent : Monday, February 15, 2016 6:26 PM To : "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com >, "Brenda Brewer" < brenda.brewer@icann.org >, "CCWG-Accountability" < accountability-cross-community@icann.org > Subject : Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC   Paul -    Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out?  As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker.  In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity).  I understand that reduction is a matter of concern to the Board.   I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance.  To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be.  I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible.     That said, I agree we should discuss the proposal on our call tomorrow.   Becky   J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932     Mobile: +1.202.352.6367   / neustar.biz   From:   Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com > Date:   Monday, February 15, 2016 at 10:43 AM To:   " brenda.brewer@icann.org " < brenda.brewer@icann.org >, Accountability Community < accountability-cross-community@icann.org > Subject:   Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC   <~WRD000.jpg> Dear Co-Chairs   Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2?   I would hope that we would have full discussion of this proposed change, which I would be opposed to …   Paul   Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.jpg>   From:   Brenda Brewer [ mailto:brenda.brewer@icann.org ] Sent:   Monday, February 15, 2016 8:03 AM To:   CCWG-Accountability < accountability-cross-community@icann.org > Subject:   [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC   Dear all, In preparation for your call   #84   – Tuesday,   16 February   2016   at 06:00 – 08:00 UTC   ( time converter ), see below a proposed agenda: 1.         Opening Remarks 2.         Comments on Supplementary Report 3.         Budget 4.         AOC Adobe Connect:   https://icann.adobeconnect.com/accountability/   Thank you! Kind regards, Brenda  

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I hesitated before intervening since now, it is finished, and no substantial change can be made. But since colleagues are still discussing, I would like to highlight the following points: The principle of never adopt an unanimity for any of the empowered community decisions is not sacred. It is not in the charter. Spilling the entire board is a so very serious decision that makes it a special one, and for a special decision, we may accept a special derogation of the above principle The consequences of such decision may harm ICANN as a whole, and the Internet as a unique global network. We shouldn’t in my opinion make it easy to happen, even in a very specific case. ------------------------------------------------------------------------------------- Tijani BEN JEMAA Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (FMAI) Phone: +216 98 330 114 +216 52 385 114 --------------------------------------------------------------------------------------

Le 16 févr. 2016 à 20:34, Seun Ojedeji <seun.ojedeji@gmail.com> a écrit :

Becky wrote: My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?

SO: +1 on this but I also expect that irrespective of whether it's board action on GAC or not, a call to spill the board as a result of violation of bylaw/articles would normally go through IRP. Isn't that why we had the option 1 in the first place(as it predates the current GAC discussion).

That said, I guess what needs clarification is what Becky has rightly indicated: "...where the justification for the use of this community power is something other than a violation of the Bylaws or Articles..."

I think that is where option 2(with all its escalation in-place prior to the spill act) would be applicable. The justification referred does not apply just to board action on GAC advice but actually to any board action/inaction as described in the report.

I am always of the opinion that it is a good thing to let GAC defend itself by also adding her "consensus" based support. However, since we have gotten past that stage, I would just hope that the 3(minimum) support would be sufficient enough to be representative of the community. Otherwise, considering that GAC is out of the loop, I would have said leaving the threshold at 4 would have still been the best thing to do.

I understand the CCWG took a no-unanimous principle (even though it's not in the charter), but considering that one part of the community is out of the ban/decision makers, it's really not unanimous in this context.

Overall as it's been said, this is very much an unlikely scenario. If we get to the stage of spilling the board then most likely the technical operators would have figured a way to communicate independent of ICANN root.

Regards

On 16 Feb 2016 5:57 p.m., "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote: Brett,

My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?

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

Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.

I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.

Becky

J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 <tel:%2B1.202.533.2932> Mobile: +1.202.352.6367 <tel:%2B1.202.352.6367> / neustar.biz <http://www.neustar.biz/>

From: <Schaefer>, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> Date: Tuesday, February 16, 2016 at 9:38 AM To: Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>>, "egmorris1@toast.net <mailto:egmorris1@toast.net>" <egmorris1@toast.net <mailto:egmorris1@toast.net>>, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Becky,

The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out.

Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened.

Thanks,

Brett

BrettSchaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMGaQ&c...>

From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Burr, Becky Sent: Monday, February 15, 2016 2:22 PM To: egmorris1@toast.net <mailto:egmorris1@toast.net>; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Not sure that Board comments are being fast tracked, but considered

You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP

J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 <tel:%2B1.202.533.2932> Mobile:+1.202.352.6367 <tel:%2B1.202.352.6367> /neustar.biz <http://www.neustar.biz/>

From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Reply-To: "egmorris1@toast.net <mailto:egmorris1@toast.net>" <egmorris1@toast.net <mailto:egmorris1@toast.net>> Date: Monday, February 15, 2016 at 2:08 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Hi Becky,

I have two concerns here that I hope those with expertise in these specific areas can help me put to rest:

?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur?

2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice when said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation).

?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise.

Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this?

?

Best,

Ed Morris

From: "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> Sent: Monday, February 15, 2016 6:26 PM To: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>>, "Brenda Brewer" <brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>>, "CCWG-Accountability" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Paul -

Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board.

I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible.

That said, I agree we should discuss the proposal on our call tomorrow.

Becky

J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 <tel:%2B1.202.533.2932> Mobile:+1.202.352.6367 <tel:%2B1.202.352.6367> /neustar.biz <http://www.neustar.biz/>

From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

<~WRD000.jpg>

Dear Co-Chairs

Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to …

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> Skype: paul.rosenzweig1066

Link to my PGP Key <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <image001.jpg> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...>

From: Brenda Brewer [mailto:brenda.brewer@icann.org <mailto:brenda.brewer@icann.org>] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC

Dear all,

In preparation for your call #84 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda:

1. Opening Remarks

2. Comments on Supplementary Report

3. Budget

4. AOC

Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...>

Thank you!

Kind regards,

Brenda

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

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

Dear Kavouss, The CCWG Proposal has always permitted Board recall for any reason, and that this has always been part of the CCWG Proposal. When we moved from the Single Member model to the Sole Designator model, that power became more important (because Board spill is the only fully enforceable power). While I think Board recall would most likely arise in connection with action/inaction alleged to violate ICANN’s Bylaws, it’s theoretically conceivable that the community could articulate a reason that does not involve such a violation. If so, then an IRP would not be available – because to bring an IRP you must allege that ICANN violated its Bylaws and/or Articles. If we were to agree that the Board could not be recalled unless the community first brought an IRP, that would mean that we are in principle narrowing the grounds for recall in a pretty dramatic way. My view is that the Board’s position is reasonable where an IRP is available, and unreasonable in those situations – perhaps highly unusual but nonetheless conceivable – where the grounds for recall do not rest on an allegation that it has violated the Bylaws/Articles. I hope that helps. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Wednesday, February 17, 2016 at 2:41 AM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: "Schaefer, Brett" <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>>, "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>>, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Beckie What are those cases that the community alleged ICANN actions in regard with GAC Advice other than non observance of Bylaws( including Mission) and Article of Incorporation.Pls kindly be specified as Brett using your vague and unclear interpretation ? Awaiting your reply pls Kavouss Sent from my iPhone On 16 Feb 2016, at 17:57, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Brett, My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding? If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds). Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles. I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable. Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: <Schaefer>, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> Date: Tuesday, February 16, 2016 at 9:38 AM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>>, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Becky, The Board’s proposal seems to make it mandatory to go to an IRP even if the Board’s decision is clearly within the scope and mission of ICANN. In such a situation, the IRP would obviously fail and the EC would no longer have the option of exercising its final enforcement power of spilling the Board at the lower threshold and without the GAC being a decisional participant even though the original Board Decision was based on consensus GAC advice. As I mentioned last night in my semi-slumber, this would be, in my mind, a loophole to the GAC carve out. Could you point me to the section of the Board’s proposal that says that “the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP”? If that is the case, then my concerns are greatly lessened. Thanks, Brett ________________________________ BrettSchaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMGaQ&c...> From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Monday, February 15, 2016 2:22 PM To: egmorris1@toast.net<mailto:egmorris1@toast.net>; Paul Rosenzweig; Brenda Brewer; CCWG-Accountability Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Not sure that Board comments are being fast tracked, but considered You are correct Ed, that the requirement to bring an IRP first could only apply where there are grounds to invoke an IRP J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Reply-To: "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>> Date: Monday, February 15, 2016 at 2:08 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Hi Becky, I have two concerns here that I hope those with expertise in these specific areas can help me put to rest: ?1. Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal? Is there something I'm missing here? My belief was that we're at the point of vetting the Supplemental for technical, not substantive, omissions and additions. Should not these Board objections now be included in a Minority Statement, rather than receiving preferential consideration by the entire CCWG? If the answer to that query is in the negative. that substantive revisions may still be adopted, do not our rules mandate consideration at two meetings before any alteration to our proposal should occur? 2. I personally don't have a problem with requiring the community to invoke an IRP before spilling the Board when the reason for the recall was Board implementation of GAC advice when said advice is related to subject matter appropriate for an IRP panel to hear (generally, ICANN acting in a way outside its scope and/or not consistent with its Bylaws or Articles of Incorporation). ?What, though, of GAC consensus advice that is itself outside the scope of an IRP? I'm thinking of consensus GAC advice that is within ICANN's mission and scope, where there is no allegation of a Bylaws or Articles violations, yet whose approval by the Board triggers a community desire to spill the Board. An example could be something related to the delegation of a gTLD that, for some reason, has prompted GAC opposition. The IRP would not act affirmatively in this instance to any request to nullify the Board action because the reasons for the community opposition presumably lay outside the remit of an IRP. Do we then want the fact that the IRP refused to act, because it can't, to then raise the threshold by which Board spillage will occur? I'm not sure that's wise. Of course, as Becky noted I don't anticipate this aspect of our proposal will truly ever come into play. At least I hope its doesn't. That said, we need to design our structures as if it might and raising spill thresholds as a result of an IRP not making a substantive decision on an issue because said issue itself is outside it's remit...do we really want to do this? ? Best, Ed Morris ________________________________ From: "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Sent: Monday, February 15, 2016 6:26 PM To: "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, "Brenda Brewer" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, "CCWG-Accountability" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Paul - Are you asking whether we will discuss the proposal that Bruce put on the table regarding the GAC carve out? As I understand it, the proposal would apply only where Board recall was sought in response to Board implementation of GAC consensus advice and the GAC was thus precluded from participating in the EC as a decision maker. In that situation, we reduced the requisite support level from 4 to 3 (to prevent requiring unanimity). I understand that reduction is a matter of concern to the Board. I personally don’t have a lot of trouble with the notion that the community would be required to invoke the IRP process before moving to recall the entire Board in that circumstance. To be candid, my comfort reflects my belief that the Board recall power is nearly illusory, given how disruptive such a step would be. I can’t imagine why one would choose recall over resort to the independent judiciary wherever possible. That said, I agree we should discuss the proposal on our call tomorrow. Becky J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Monday, February 15, 2016 at 10:43 AM To: "brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>" <brenda.brewer@icann.org<mailto:brenda.brewer@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC [Image removed by sender.] Dear Co-Chairs Will the Board’s proposal re: further revisions to the EC process be discussed under Item #2? I would hope that we would have full discussion of this proposed change, which I would be opposed to … Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> <image001.jpg><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Brenda Brewer [mailto:brenda.brewer@icann.org] Sent: Monday, February 15, 2016 8:03 AM To: CCWG-Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Dear all, In preparation for your call #84<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_A...> – Tuesday, 16 February 2016 at 06:00 – 08:00 UTC (time converter<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worl...>), see below a proposed agenda: 1. Opening Remarks 2. Comments on Supplementary Report 3. Budget 4. AOC Adobe Connect: https://icann.adobeconnect.com/accountability/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__icann.adobeconnect.com_...> Thank you! Kind regards, Brenda <~WRD000.jpg> <image001.jpg> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=kx4PhTGQic0ynweLXpgyPi5yLry4kfCW5704mH0G5nk&s=FzlYbkTsRn-vWfIvLu_RqMRU9p1XEHbAYZpVjj5UnT4&e=>

Beckie Tks for explanation. This means that Under those circumstances that ICANN Bylaws and /or Article of Incorporation isnot violated , the Board is Under the mercy of the SO/AC . That is a very shaky and uncertain situation since just those SO and AC may for any unjustified reasons get together and Spill over the Board That is what the community wants ? Regards Kavouss 2016-02-17 20:22 GMT+01:00 Malcolm Hutty <malcolm@linx.net>:

+1

Sent from my iDevice; please excuse terseness and typos.

...

On 17 Feb 2016, at 17:14, Burr, Becky <Becky.Burr@neustar.biz> wrote:

My view is that the Board’s position is reasonable where an IRP is available, and unreasonable in those situations – perhaps highly unusual but nonetheless conceivable – where the grounds for recall do not rest on an allegation that it has violated the Bylaws/Articles.

Carve-out language as posted From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Burr, Becky Sent: Wednesday, February 17, 2016 3:41 PM To: Kavouss Arasteh <kavouss.arasteh@gmail.com>; Malcolm Hutty <malcolm@linx.net> Cc: CCWG-Accountability <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC I honestly think this question has been asked and answered repeatedly by the CCWG. In a sole designator model, Board recall is the only strong enforcement power, so it must be preserved - and it must actually be exercise-able. So I strongly defend the principle. That said, these challenges are almost always going to arise in the context of a questionable exercise of Board authority under the Bylaws. In that case, the new protections we are putting in place at the Board's request (the community must first pursue an IRP whenever that is available) should safeguard against unreasonable behavior. Planning for extraordinary corner cases - a 3 SO/AC combination wanting to recall the Board because it did something permitted under the Bylaws - seems likely to sink the consensus we have carefully crafted. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Wednesday, February 17, 2016 at 3:29 PM To: Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> Cc: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC Beckie Tks for explanation. This means that Under those circumstances that ICANN Bylaws and /or Article of Incorporation isnot violated , the Board is Under the mercy of the SO/AC . That is a very shaky and uncertain situation since just those SO and AC may for any unjustified reasons get together and Spill over the Board That is what the community wants ? Regards Kavouss 2016-02-17 20:22 GMT+01:00 Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>>: +1 Sent from my iDevice; please excuse terseness and typos.

On 17 Feb 2016, at 17:14, Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote:

My view is that the Board's position is reasonable where an IRP is available, and unreasonable in those situations - perhaps highly unusual but nonetheless conceivable - where the grounds for recall do not rest on an allegation that it has violated the Bylaws/Articles.

+1 ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Wednesday, February 17, 2016 3:48 PM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Removal and accountability to community (was Re: CCWG ACCT Proposed Agenda - Call #84 - Tuesday, 16 February @ 06:00 UTC) Hi, On Wed, Feb 17, 2016 at 09:29:47PM +0100, Kavouss Arasteh wrote:

of Incorporation isnot violated , the Board is Under the mercy of the SO/AC . That is a very shaky and uncertain situation since just those SO and AC may for any unjustified reasons get together and Spill over the Board That is what the community wants ?

I keep being surprised by others' surprise about the ability of the SOs and ACs to get together and remove the board, given that for some time we've been working on a system by which the SOs and ACs can get together and spill the board. Some earlier proposals appeared (to some) to be too fragile, because they made that removal easy. But now there is the long engagement and escalation process that requires a lot of work and, it is to be hoped, impresses upon everyone precisely how serious a step they are taking. Ultimately, though, accountability to the community means that the community can remove you at any time. It also means that the community needs to behave responsibly. We should have confidence that the ICANN community -- of which, after all, we are all a part -- will indeed behave that way. In case it's useful, by way of comparison: my colleagues on the IAB can remove me as chair at any time and for any reason (no explanation, fulsome or otherwise, required); and with sufficient nomcom-eligible IETF participants I can also be recalled at any time from the IAB. The IETF has never exercised this procedure all the way through to the end, because by the time things are that serious everyone realises that it's time for discussion and compromise. I think the same thing will happen here. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com<mailto:ajs@anvilwalrusden.com> _______________________________________________ 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>

Andrew, Well said. Greg On Wed, Feb 17, 2016 at 4:04 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:

Agreed.

Sent from my iPhone

...

On 18 Feb 2016, at 7:49 AM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:

Hi,

...

On Wed, Feb 17, 2016 at 09:29:47PM +0100, Kavouss Arasteh wrote: of Incorporation isnot violated , the Board is Under the mercy of the SO/AC . That is a very shaky and uncertain situation since just those SO and AC may for any unjustified reasons get together and Spill over the Board That is what the community wants ?

I keep being surprised by others' surprise about the ability of the SOs and ACs to get together and remove the board, given that for some time we've been working on a system by which the SOs and ACs can get together and spill the board.

Some earlier proposals appeared (to some) to be too fragile, because they made that removal easy. But now there is the long engagement and escalation process that requires a lot of work and, it is to be hoped, impresses upon everyone precisely how serious a step they are taking.

Ultimately, though, accountability to the community means that the community can remove you at any time. It also means that the community needs to behave responsibly. We should have confidence that the ICANN community -- of which, after all, we are all a part -- will indeed behave that way.

In case it's useful, by way of comparison: my colleagues on the IAB can remove me as chair at any time and for any reason (no explanation, fulsome or otherwise, required); and with sufficient nomcom-eligible IETF participants I can also be recalled at any time from the IAB. The IETF has never exercised this procedure all the way through to the end, because by the time things are that serious everyone realises that it's time for discussion and compromise. I think the same thing will happen here.

Best regards,

A

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

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

Hello Edward,

...

Why are these latest Board objections/proposals being fast tracked within the CCWG at the last minute? Did the Board not have ample opportunity to raise these issues during the normal and proper review of the third draft proposal?

The issue we have raised relates to the compromise reached regarding GAC advice that was only agreed last week. The change was to lower the threshold for removing the Board from 4 SOs/ACs to 3 in that situation- which is a change that only emerged last week. Regards, Bruce Tonkin