June 2015 - ALAC - lists.icann.org

CCWG-Accountability REVISED Draft Comment Posted.
by Alan Greenberg June 2, 2015

June 2, 2015

TA revised version of the Comment has been posted incorporating the issues raised in the last day. See https://community.icann.org/x/koU0Aw. Note that there is a conflict between this statement and that submitted by AFRALO. I have asked for clarification on whether the text in the Draft ALAC comments suffices to address the issues raised by AFRALO but there has not been a reply as yet. Alan

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Questions on Accountability Proposals
by Alan Greenberg June 1, 2015

June 1, 2015

The ALAC and IANA-Issues meetings last week brought a lot of clarity to the position of At-Large with respect the CCWG-Accountability Proposals. One area where participants seemed to hold varying opinions was to what extent the new accountability measures need to be "enforceable". For a power given to the community to be enforceable, the community or its representatives ultimately need to be able to go to court if ICANN (ie the ICANN Board) does not honor the communities directives. That doesn't mean that anyone WILL sue, but the right and therefore the possibility is there. Currently, we have no such right. Although there have been numerous times where parts of the community (at times large parts) have been dissatisfied with Board action, it is not clear that IF we had the planned powers at that time, would we have used them. In a typical case, although some parts of the community may be dissatisfied, others were delighted with the decision. In a case such as the creation of "digital archery" to address the order in which new gTLD applications would be processed, pretty much everyone was dissatisfied, but it is far from clear it was an issue that warranted extreme action. If there is no formal enforceability, then we would rely on good faith and trust to address points of contention. In the case of failure, most parties seem to agree that removal of the Board (or selected parts of it) must be fully enforceable. The current CCWG proposal calls for COMPLETE enforceability. This implies certain structural changes. Here are several questions. This message is also being sent to the IANA Issues list. Only one reply is needed. Please reply by Monday if at all possible. 1. Do you believe that failing anything else, we must have the ability to remove parts of or all of the Board? 2. With the exception of Board member removal, do we need legal enforceability of can we rely on good faith (and Board member removal if you supported that). 3. If the final CCWG proposal calls for full legal enforceability, is that sufficient reason for the ALAC to not ratify it? Alan

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Re: [ALAC] Questions on Accountability Proposals
by Alan Greenberg June 1, 2015

June 1, 2015

Perhaps the logic is similar, but the implications if the ALAC were to take such a position an possibly jeopardize the accountability measures being adopted and thus the IANA transition are not insignificant. Alan At 31/05/2015 01:00 PM, Maureen Hilyard wrote: >Not exactly opposite, Alan. Olivier did qualify his NO response with >" I see no particular harm in a call for something that will, >in practice, likely neither work, nor ever be used. If we reach the >need for legal enforceability, it means ICANN really is in >trouble." which prompted my "Well, What's the point.." > >On Sun, May 31, 2015 at 6:43 AM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> wrote: >Murray, You cannot fully support the comments of Maureen and Olivier >because they answered exactly oppositely to Q3. > >Alan > >At 31/05/2015 12:15 PM, Murray McKercher wrote: >>1. Yes, 2. No 3. Yes >> >>I fully support the comments made by Olivier and Maureen. >> >>Consensus consultation and transparency provide the foundation for >>democratic process. If ICANN is serious in its dedication to >>creating a democratic global governance system, then commitment to >>consensus consultation and transparency is key. Substantive >>movement towards confrontational legalistic processes may undermine >>the strategic goals of the organisation and the spirit to which the >>volunteers are committed. >> >>Murray McKercher >> >> >> >> >>On Saturday, May 30, 2015 10:14 PM, Alan Greenberg >><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> wrote: >> >> >>Yes, No and No. >> >>At 30/05/2015 10:04 PM, Alan Greenberg wrote: >> >> >1. Do you believe that failing anything else, we must have the >> >ability to remove parts of or all of the Board? >> > >> >2. With the exception of Board member removal, do we need legal >> >enforceability of can we rely on good faith (and Board member >> >removal if you supported that). >> > >> >3. If the final CCWG proposal calls for full legal enforceability, >> >is that sufficient reason for the ALAC to not ratify it? >> > >> >Alan >> >>_______________________________________________ >>ALAC mailing list >><mailto:ALAC@atlarge-lists.icann.org>ALAC(a)atlarge-lists.icann.org >>https://atlarge-lists.icann.org/mailman/listinfo/alac >> >>At-Large Online: <http://www.atlarge.icann.org/>http://www.atlarge.icann.org >>ALAC Working Wiki: >><https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+>https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+ >>(ALAC) > >_______________________________________________ >ALAC mailing list ><mailto:ALAC@atlarge-lists.icann.org>ALAC(a)atlarge-lists.icann.org >https://atlarge-lists.icann.org/mailman/listinfo/alac > >At-Large Online: <http://www.atlarge.icann.org>http://www.atlarge.icann.org >ALAC Working Wiki: ><https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL…>https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL… >

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Re: [ALAC] CCWG-Accountability Draft Comment Posted.
by Alan Greenberg June 1, 2015

June 1, 2015

Please post on the wiki. At 01/06/2015 10:54 AM, Carlton Samuels wrote: >Re Lines 162-163. We really should desist from this kind of >doublespeak. The [s]election of a Director is THE supreme political >act! In regard the At-Large, we had an election, for chrissakes! > >-Carlton > > >============================== >Carlton A Samuels >Mobile: 876-818-1799 >Strategy, Planning, Governance, Assessment & Turnaround >============================= > >On Mon, Jun 1, 2015 at 12:39 AM, Alan Greenberg ><<mailto:alan.greenberg@mcgill.ca>alan.greenberg(a)mcgill.ca> wrote: >The first draft of the ALAC comments is posted at ><https://community.icann.org/x/koU0Aw>https://community.icann.org/x/koU0Aw. >A copy is also attached to this e-mail. It needs to be read along >with the overall proposal >(<https://www.icann.org/en/system/files/files/cwg-accountability-draft-propos…>https://www.icann.org/en/system/files/files/cwg-accountability-draft-propos…) > >The final version must be submitted on Wednesday, 03 June by 23:59 UTC. > >Although the comment covers a lot of areas, I believe that it >faithfully reflects (on the whole) what has been contributed on our >many teleconferences on the subject). > >Please post comments and suggestions here using line numbers to >identify target text. > >Note that at the start I was inserting the explicit questions asked >by the report but found they added little value to the comments >already inserted. I will remove these Blue questions in the next version. > >Alan > > > > >_______________________________________________ >ALAC mailing list ><mailto:ALAC@atlarge-lists.icann.org>ALAC(a)atlarge-lists.icann.org >https://atlarge-lists.icann.org/mailman/listinfo/alac > >At-Large Online: <http://www.atlarge.icann.org>http://www.atlarge.icann.org >ALAC Working Wiki: ><https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL…>https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(AL… >

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CCWG-Accountability Draft Comment Posted.
by Alan Greenberg June 1, 2015

June 1, 2015

The first draft of the ALAC comments is posted at https://community.icann.org/x/koU0Aw. A copy is also attached to this e-mail. It needs to be read along with the overall proposal (https://www.icann.org/en/system/files/files/cwg-accountability-draft-propos…) The final version must be submitted on Wednesday, 03 June by 23:59 UTC. Although the comment covers a lot of areas, I believe that it faithfully reflects (on the whole) what has been contributed on our many teleconferences on the subject). Please post comments and suggestions here using line numbers to identify target text. Note that at the start I was inserting the explicit questions asked by the report but found they added little value to the comments already inserted. I will remove these Blue questions in the next version. Alan

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Re: [ALAC] [IANA-issues] CLARIFICATION: Questions on Accountability Proposals
by León Felipe Sánchez Ambía June 1, 2015

June 1, 2015

Hi all, When thinking of having a legal vehicle to provide the SO/ACs with standing to sue, we have to remember that there are different “locks” that are thought to prevent situations in which: a)ICANN could be captured by a certain group by means of legal action; b)ICANN could be prey to frivolous claims; and c)ICANN could be paralyzed as a consequence of legal action against it (with regards to Board removal). As Alan has said, it is considered that ICANN would pay for costs of legal action by SO/ACs should they arise. The key here is the threshold and combination of actions needed to actually sue ICANN as a last resort. We need to not forget that we also have an enhanced IRP (binding and mindful of substance rather than just process) and partial or total Board recall. As many have said in the lists and calls of the many WGs discussing this issue, if we are at the point in which we are suing ICANN, then, probably, nothing is left already. On the other hand, it’s true that opening the door might let in ghosts in the future. As we have discussed, this is not about the people in the present day but those in the future. We might be considering legal action as a last resort but future members may not think the same. That’s a chance we should weigh and decide whether we want to take it or not and at what cost. I am convinced that enforceability of powers contained in the CCWG proposal are essential to enhancing ICANN’s accountability. I also agree that we need to be careful what we wish for as it may come true. As I’ve said, the ability to sue should be enough deterrent for ICANN not to listen and act according to the community’s interests. This is our version of the so called Roosevelt’s Big Stick Diplomacy “Speak softly and carry a big stick”. Last but not least, anyone today can sue ICANN for whatever reason they feel. The question is not whether anyone is able to bring ICANN to court but if those law suits may have a chance to be successful. Best regards, León > El 31/05/2015, a las 18:16, Roberto Gaetano <roberto_gaetano(a)hotmail.com> escribió: > >> >> And to be clear, yes, ICANN would have to indemnify us (individuals and >> AC/SOs) for all costs involved in suing ICANN (that is a common clause in >> some contracts). >> > > Does that mean that any individual in the world can sue ICANN at will for > whatever reason, even frivolous, without risking not even one penny? > R. > > _______________________________________________ > Iana-issues mailing list > Iana-issues(a)atlarge-lists.icann.org > https://mm.icann.org/mailman/listinfo/iana-issues

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Re: [ALAC] R: [IANA-issues] CLARIFICATION: Questions on Accountability Proposals
by Alan Greenberg June 1, 2015

June 1, 2015

At 31/05/2015 07:16 PM, Roberto Gaetano wrote: > > > > And to be clear, yes, ICANN would have to indemnify us (individuals and > > AC/SOs) for all costs involved in suing ICANN (that is a common clause in > > some contracts). > > > >Does that mean that any individual in the world can sue ICANN at will for >whatever reason, even frivolous, without risking not even one penny? >R. No, indemnification would be for the Unincorporated Associations or for the individuals who would act as Members, when acting in their official capacity. Alan

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