Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device <div>-------- Original message --------</div><div>From: Phil Corwin <psc@vlaw-dc.com> </div><div>Date:10/12/2015 9:43 PM (GMT-05:00) </div><div>To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au>, 'Accountability Cross Community' <accountability-cross-community@icann.org> </div><div>Cc: </div><div>Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin </div><div> </div>+1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ 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 ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com> wrote:
Agreed.
The biggest threat to the model is showing icann to have been a broken implementation.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au>, 'Accountability Cross Community' <accountability-cross-community@icann.org> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
+1
The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations.
The MSM is weakened, not saved, by rejecting and rewriting its output.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems.
More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers.
In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality.
And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both.
If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process.
Regards, Bruce Tonkin
_______________________________________________ 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
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So, then the Board better support the CCWG proposal. el -- Sent from Dr Lisse's iPad mini
On 13 Oct 2015, at 04:29, Greg Shatan <gregshatanipc@gmail.com> wrote:
Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board.
That would make any proposal sent with a lack of support from the Board a non-starter.
I could be misremembering, but I don't think I'm far off.
On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com> wrote: Agreed.
The biggest threat to the model is showing icann to have been a broken implementation.
avri
Sent from a T-Mobile 4G LTE Device
-------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au>, 'Accountability Cross Community' <accountability-cross-community@icann.org> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
+1
The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations.
The MSM is weakened, not saved, by rejecting and rewriting its output.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems.
More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers.
In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality.
And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin
Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both.
If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process.
Regards, Bruce Tonkin
_______________________________________________ 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
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On 2015-10-13 03:29, Greg Shatan wrote:
Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board.
That would make any proposal sent with a lack of support from the Board a non-starter.
I agree, but let's not overread that. We don't have a decision from the Board yet, we have a negotiating position. Before Larry get the proposal, it must be transmitted from us to the chartering organisations, and thence to the Board. The Board will then have to reconsider its position and take a final decision in the light of the fact that the proposal is now finalised and has the formal support of the community. For the Board to torpedo a community consensus proposal in the way you describe would be a huge step, with profound consequences for ICANN's credibility in the political community. The Board won't do that lightly. The Board might remain intransigent. But they might be willing, in those circumstances, to endorse a widely-supported proposal that is broadly aligned with their expectations even if it still contains a few elements against which they previously expressed concerns. So in that light, their claims that they are "95% in agreement" with our proposal is encouraging. So while I agree with your statement above in the abstract, I would avoid drawing from it any inference of a practical necessity to simply accept what the Board tells us to do. We are entitled to our own view, and insisting on it is not fatal to this process. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Malcolm. Believe me, I do not draw any inference of a practical necessity to simply accept what the Board tells us. I just wanted to clarify the various concepts in play as we discuss the Board's obligation to pass on our proposal vs. the Board's potential decision not to support it. I agree with your overall view of where this concept fits into the matrix. Greg On Tue, Oct 13, 2015 at 4:27 AM, Malcolm Hutty <malcolm@linx.net> wrote:
On 2015-10-13 03:29, Greg Shatan wrote:
Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board.
That would make any proposal sent with a lack of support from the Board a non-starter.
I agree, but let's not overread that. We don't have a decision from the Board yet, we have a negotiating position.
Before Larry get the proposal, it must be transmitted from us to the chartering organisations, and thence to the Board. The Board will then have to reconsider its position and take a final decision in the light of the fact that the proposal is now finalised and has the formal support of the community.
For the Board to torpedo a community consensus proposal in the way you describe would be a huge step, with profound consequences for ICANN's credibility in the political community. The Board won't do that lightly.
The Board might remain intransigent. But they might be willing, in those circumstances, to endorse a widely-supported proposal that is broadly aligned with their expectations even if it still contains a few elements against which they previously expressed concerns. So in that light, their claims that they are "95% in agreement" with our proposal is encouraging.
So while I agree with your statement above in the abstract, I would avoid drawing from it any inference of a practical necessity to simply accept what the Board tells us to do. We are entitled to our own view, and insisting on it is not fatal to this process.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Greg – I thought Larry just said – “Get consensus and hurry up.” The Board has not actually followed the procedure specified in the Charter for notifying the CCWG that it believes the proposal is “not in the global public interest”. I suppose they may do so if the CCWG-Accountability does not accept their counter-proposal. I don’t know how they send a letter to NTIA disagreeing with the CCWG-ACCT recommendation without formally following the procedure below first. But maybe they already did? Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? (So much for the MSM.) So when out next report comes out, it is presumed the Board may say it has not yet followed the procedure below and would then, at that point in the future, take a vote requiring 2/3 majority and then notify the CCWG? Phil Corwin’s prior post repeated here: “Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states: 2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board. 3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” [cid:image001.gif@01D105A2.D14D4D00] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, October 12, 2015 7:30 PM To: avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com<mailto:avri@ella.com>> wrote: Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin +1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597<tel:202-559-8597>/Direct 202-559-8750<tel:202-559-8750>/Fax 202-255-6172<tel:202-255-6172>/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@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 -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
I think that is right Anne, based on what Bruce Tonkin has said. At this point the Board is just “participating” in the ongoing conversation. If, at the end of the day, it decides our suggested way forward (adopted by the chartering organizations based on the CCWG report) is NOT in the global public interest then, by a 2/3rd vote, it may demand a dialog. It remains to be seen how this interacts with the promise to forward the CCWG final proposal to NTIA unchanged. P Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Aikman-Scalese, Anne [mailto:AAikman@lrrlaw.com] Sent: Tuesday, October 13, 2015 1:40 PM To: 'Greg Shatan' <gregshatanipc@gmail.com>; avri doria <avri@ella.com> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Greg – I thought Larry just said – “Get consensus and hurry up.” The Board has not actually followed the procedure specified in the Charter for notifying the CCWG that it believes the proposal is “not in the global public interest”. I suppose they may do so if the CCWG-Accountability does not accept their counter-proposal. I don’t know how they send a letter to NTIA disagreeing with the CCWG-ACCT recommendation without formally following the procedure below first. But maybe they already did? Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? (So much for the MSM.) So when out next report comes out, it is presumed the Board may say it has not yet followed the procedure below and would then, at that point in the future, take a vote requiring 2/3 majority and then notify the CCWG? Phil Corwin’s prior post repeated here: “Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states: 2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board. 3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com <mailto:AAikman@lrrlaw.com> | www.LRRLaw.com <http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, October 12, 2015 7:30 PM To: avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com <mailto:avri@ella.com> > wrote: Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com> > Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> >, 'Accountability Cross Community' <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin +1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597 <tel:202-559-8597> /Direct 202-559-8750 <tel:202-559-8750> /Fax 202-255-6172 <tel:202-255-6172> /cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@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 -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> ] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _____ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Regarding the question below about delegating a Community rejection of a budget to binding arbitration, I also note an excerpt from one of the recent Sidley memos which opines that in the absence of a statutory right (e.g. that conferred by a CA membership corporation which relieves the directors of fiduciary duties with respect to powers reserved to the members), DIRECTORS MAY NOT DELEGATE DECISIONS REQUIRING EXERCISE OF THEIR CORE FIDUCIARY DUTIES TO AN ARBITRATION PANEL. HERE IS THE EXCERPT FROM THE LEGAL MEMO MATHIEU DISTRIBUTED EARLIER TODAY AND IS ATTACHED AGAIN – see page A-2 A board may not submit exercise of “core” fiduciary duties to arbitration. As noted above, California law requires “[e]ach corporation [to] have a board of directors” that exercises the powers of the corporation and each director acts as a fiduciary of the corporation. Cal. Corp. Code § 5210. “The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.” Id. (emphasis added). The California courts have not determined the precise limits of the italicized text, but with respect to for-profit corporations, the California Supreme Court has held in Wells Fargo Bank v. Superior Court, 811 P.2d 1025, 1033 (Cal. 1991) (en banc), that “a board of directors has no power to delegate the performance of its basic powers and functions, particularly its statutory prerogatives, in the absence of express statutory authority.” So it would be good to know if Jones Days believes the Board can submit authority over the budget and authority over the strategic and operating plans (as required by the CWG-Stewardship) to binding arbitration as is suggested by the MEM proposal and by Fadi’s chart. PLEASE NOTE I PERSONALLY BELIEVE IT IS HIGHLY UNLIKELY THAT AN ARBITRATION ORDER FOUNDED ON A PROCESS THAT VIOLATES STATUTORY LAW PROHIBITING DELEGATION OF FIDUCIARY DUTY WOULD BE ENFORCEABLE IN COURT. (This is not a legal opinion.) Anne [cid:image001.gif@01D105A6.EF50E060] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: Aikman-Scalese, Anne Sent: Tuesday, October 13, 2015 10:40 AM To: 'Greg Shatan'; avri doria Cc: Accountability Cross Community Subject: RE: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Greg – I thought Larry just said – “Get consensus and hurry up.” The Board has not actually followed the procedure specified in the Charter for notifying the CCWG that it believes the proposal is “not in the global public interest”. I suppose they may do so if the CCWG-Accountability does not accept their counter-proposal. I don’t know how they send a letter to NTIA disagreeing with the CCWG-ACCT recommendation without formally following the procedure below first. But maybe they already did? Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? (So much for the MSM.) So when out next report comes out, it is presumed the Board may say it has not yet followed the procedure below and would then, at that point in the future, take a vote requiring 2/3 majority and then notify the CCWG? Phil Corwin’s prior post repeated here: “Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states: 2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board. 3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” [cid:image001.gif@01D105A6.EF50E060] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, October 12, 2015 7:30 PM To: avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com<mailto:avri@ella.com>> wrote: Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin +1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597<tel:202-559-8597>/Direct 202-559-8750<tel:202-559-8750>/Fax 202-255-6172<tel:202-255-6172>/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@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 -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Anne, See the attached which is Bruce’s response to this question. They will forward whatever CCWG sends, and I think they always had the right to comment. And if they have issues they will continue dialog. But I think the Resolution of 10/16/14 is superseded by the Board statement of Feb’15 (at least that seems to be the current mode of operation). So I don’t see how the whole “2/3rds finding of not in the global interest” thing fits in at all anymore. That process made sense when the Board was able to invoke a veto (per the Charter), but since they are going to forward regardless, it seems reasonable that they be freer to talk. But Bruce copied in case I am miss-interpreting things. I think what IS important is that the co-chairs revise the charter to reflect what the process actually is that we followed, including interaction with the board, because this is an important piece of the proposal to the USG to demonstrate proper due diligence. Mike From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, October 13, 2015 1:40 PM To: 'Greg Shatan'; avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Greg – I thought Larry just said – “Get consensus and hurry up.” The Board has not actually followed the procedure specified in the Charter for notifying the CCWG that it believes the proposal is “not in the global public interest”. I suppose they may do so if the CCWG-Accountability does not accept their counter-proposal. I don’t know how they send a letter to NTIA disagreeing with the CCWG-ACCT recommendation without formally following the procedure below first. But maybe they already did? Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? (So much for the MSM.) So when out next report comes out, it is presumed the Board may say it has not yet followed the procedure below and would then, at that point in the future, take a vote requiring 2/3 majority and then notify the CCWG? Phil Corwin’s prior post repeated here: “Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states: 2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board. 3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” [cid:image001.gif@01D105C0.7E7D0FC0] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, October 12, 2015 7:30 PM To: avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com<mailto:avri@ella.com>> wrote: Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin +1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597<tel:202-559-8597>/Direct 202-559-8750<tel:202-559-8750>/Fax 202-255-6172<tel:202-255-6172>/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@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 -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Many thanks Mike. Indeed if the Charter has been modified, then it seems there must be a Charter amendment and I am sure there is a formal process for that as well. Anne [cid:image001.gif@01D105AA.B54F3020] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: Chartier, Mike S [mailto:mike.s.chartier@intel.com] Sent: Tuesday, October 13, 2015 11:25 AM To: Aikman-Scalese, Anne; 'Greg Shatan'; avri doria Cc: Accountability Cross Community; Bruce Tonkin Subject: RE: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Anne, See the attached which is Bruce’s response to this question. They will forward whatever CCWG sends, and I think they always had the right to comment. And if they have issues they will continue dialog. But I think the Resolution of 10/16/14 is superseded by the Board statement of Feb’15 (at least that seems to be the current mode of operation). So I don’t see how the whole “2/3rds finding of not in the global interest” thing fits in at all anymore. That process made sense when the Board was able to invoke a veto (per the Charter), but since they are going to forward regardless, it seems reasonable that they be freer to talk. But Bruce copied in case I am miss-interpreting things. I think what IS important is that the co-chairs revise the charter to reflect what the process actually is that we followed, including interaction with the board, because this is an important piece of the proposal to the USG to demonstrate proper due diligence. Mike From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, October 13, 2015 1:40 PM To: 'Greg Shatan'; avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Greg – I thought Larry just said – “Get consensus and hurry up.” The Board has not actually followed the procedure specified in the Charter for notifying the CCWG that it believes the proposal is “not in the global public interest”. I suppose they may do so if the CCWG-Accountability does not accept their counter-proposal. I don’t know how they send a letter to NTIA disagreeing with the CCWG-ACCT recommendation without formally following the procedure below first. But maybe they already did? Did someone hear of a 2/3 majority Board vote that the CCWG Proposal is not in the global public interest? Is that where we are headed if the processing of public comment does not result in the structure the Board desires? (So much for the MSM.) So when out next report comes out, it is presumed the Board may say it has not yet followed the procedure below and would then, at that point in the future, take a vote requiring 2/3 majority and then notify the CCWG? Phil Corwin’s prior post repeated here: “Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states: 2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board. 3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” [cid:image001.gif@01D105AA.B54F3020] Anne E. Aikman-Scalese, Of Counsel Lewis Roca Rothgerber LLP One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611 (T) 520.629.4428 | (F) 520.879.4725 AAikman@lrrlaw.com<mailto:AAikman@lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, October 12, 2015 7:30 PM To: avri doria Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Lurking behind all this (in my mind) is Larry Strickling apparently saying that he does not want to receive a proposal that does not have the support of the Board. That would make any proposal sent with a lack of support from the Board a non-starter. I could be misremembering, but I don't think I'm far off. On Mon, Oct 12, 2015 at 10:05 PM, avri doria <avri@ella.com<mailto:avri@ella.com>> wrote: Agreed. The biggest threat to the model is showing icann to have been a broken implementation. avri Sent from a T-Mobile 4G LTE Device -------- Original message -------- From: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date:10/12/2015 9:43 PM (GMT-05:00) To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Bruce Tonkin' <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>>, 'Accountability Cross Community' <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin +1 The original impetus of this whole transition effort was to save the MSM as embodied within ICANN in the wake of the Snowden revelations. The MSM is weakened, not saved, by rejecting and rewriting its output. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597<tel:202-559-8597>/Direct 202-559-8750<tel:202-559-8750>/Fax 202-255-6172<tel:202-255-6172>/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Paul Rosenzweig Sent: Monday, October 12, 2015 9:18 PM To: 'Bruce Tonkin'; 'Accountability Cross Community' Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin And that, it seems to me, Bruce, is at the nub of the problem. In theory, the Board has committed to transmitting whatever the CCWG submits, but in reserving the right to negate what has been submitted with its own comments (which would, in effect, kill any proposal) it takes away with the left hand what it gives with the right. It is, as EL says, now down to who blinks first, it seems. More to the point however, whenever the Board says the first part ("we will submit whatever we get") without also saying the second part ("but we reserve the right to countermand that submittal with comments") it is misleading. Many in the community read the "we will submit" as an endorsement of the CCWG process without limitation. Leaving out the critical limitation makes statements incomplete and adversely effects communication and expectation. Thus, the Board's promise in Buenos Aires was read as more palliative than it actually is because of its reserved powers. In addition, when someone (like Senator Thune) asks the question from a practical perspective ("will the board accept") then leaving out the caveat is an omission that affirmatively obscures the reality. And then, there is the last sadder point: Which is that the Board's reservation of a right to comment even after it participates in the process and, hypothetically, has the community reject its concerns reflects a distrust of the MSM and a paternalistic attitude that suggests to me all sorts of inadequacies. If the Board's conclusion is true, then ICANN is not fit for the transition. If it is false, then the Board misreads the community badly. Either prospect is daunting Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@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 -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>] Sent: Saturday, October 10, 2015 9:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Blog post on the Accountability work headed to Dublin Hello Mike,
Are you going to forward them promptly, or follow the Charter and the Resolution of 10/16/14?
We will do both. If there is any disagreement - we will include that in a note to the NTIA along with the ICG and CCWG Proposals, and then initiate a dialogue with the CCWG. We will advise the NTIA of the outcome of any such process. The NTIA could either wait for the process to conclude, or it could be that the NTIA decides that the area of disagreement is not material to the IANA stewardship. I don't wish to speculate, that is for the NTIA to decide. The aim clearly is to develop a proposal that has broad support, and avoids the need for any follow on process. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.6140 / Virus Database: 4435/10780 - Release Date: 10/08/15 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
participants (7)
-
Aikman-Scalese, Anne -
avri doria -
Chartier, Mike S -
Dr Eberhard W Lisse -
Greg Shatan -
Malcolm Hutty -
Paul Rosenzweig