Wendy, Cheryl and all, My only problems with the UC joint statement have already been articulated, and include, but are again not limited to the same position all of our members expressed which in turn I reiterated to the ALAC, and the ALS'es accordingly. They are in very brief again: that the ALAC is not open and transparent and therefore accountable to the user community and further subsequently to ICANN. The ALAC and the ALS'es are also very restricted as to content of remarks, comments, and statements regarding nearly any subject that may be under discussion. Again this demonstarates a decided lack in openness and transparency, which again demonstrates clearly no accountability or false accountability, ergo illogical. That if users do not have at least a voice and a vote, they cannot be ever be reasonably represented within the GNSO structure, AND are not able to be within the ALAC/ALS'es accordingly due to the above mentioned reasons. -----Original Message-----

From: Wendy Seltzer <wendy@seltzer.com> Sent: May 19, 2008 5:39 AM To: cheryl@hovtek.com.au, At-Large writ small <alac@atlarge-lists.icann.org> Subject: Re: [At-Large] Clarification regarding status of UC Joint Statement and ALAC Statement on GNSO Improvements.

So if "no instrument was set or recorded," then the WG can only have been a discussant, not a policy-determining body, right?

I'm working to clarify discussion before raising anything with the Board in any capacity.

--Wendy

Cheryl Langdon-Orr wrote:

...

Wendy the Board minutes state you will be asked to make some sort of statement or advice to the board on this matter... I have not I believe indicated you have made one at all, I assume your enquiry to Denise and Nick was some sort of attempt to get background details or confirmation for such advice to be given to the next Board meeting, thus my earlier advice to you in response to the message copied to me for I assume my reaction...

On the other matter of delegated authority, the WG's role was discussed at considerable length but no actual instrument was set or recorded as a resolution (nor to my knowledge has one ever been on any previous statement made by the ALAC in the past)... You did not from memory, raise this question of delegated authority, as a matter for further clarification at the last ALAC meeting, beyond that general discussion which was already on the Agenda and discussed... Believe me I'm more than happy to work at much higher levels of due process, procedure and voting mechanisms than currently operate in the ALAC; however no ALAC member has called for such (at this stage) to occur... Indeed when we have even listed our existing process requirements (the formal accountability requirements for example) some criticism for too much process and complexity has been received. But we v=can certainly develop a far more protocol ridden environment if that is what is required.

We should also note that as far as the 'descent' from the ALAC's support of the final outcomes of extensive negotiation (with the other User Constituencies within ICANN) resulting in the Final Joint User Statement coming to ALAC's attention; Whilst NARALO discussed and indeed was encouraged to put on its own minority report, neither NARALO appointee to the ALAC raised this as an issue with the ALAC and indeed the latest copy of correspondence on the matter from a NARAO representative to ALAC, stated their clear concern and disagreement with a minority or dissenting report (this was to the NA-Discuss list on 24,2008 10:06 AM)... Further the latest messages from the Chair of NARALO recognized that only NARALO had any issues with this Statement at all...

We recognize you are from a NA Regional background and that these views may immerse you at various times, but your role as ALAC Liaison to the Board I believe (and I know APRALO has been raised with you) clearly demands you represent the cross regional views to the Board not any particular regional bias, at least when you are speaking in a non personal opinion Board Member capacity.

Post Paris we will however have a system of delegation of authority principals and instruments to act discussed and in place so no WG, SC or appointee acting on behalf the ALAC will either be in any doubt as to their remit, or subject to concerns of scope or responsibility creep from the wider community...

This will be the topic of the next ExCo Meeting this month to which I do hope you will be able to attend... Nick can you ensure Wendy gets an invitation to join us?

CLO

-----Original Message----- From: Wendy Seltzer [mailto:wendy@seltzer.com] Sent: Monday, May 19, 2008 8:59 PM To: cheryl@hovtek.com.au Subject: Re: Clarification regarding status of UC Joint Statement and ALAC Statement on GNSO Improvements.

I'm sorry, Cheryl, but I still await a description of where the WG, regionally balanced or not, was delegated authority to make commitments on behalf of ALAC. In the past, ALAC commitments have come with at least notice to and non-objection from the full ALAC committee.

I have not made any statements to the Board one way or another on this issue, so I do not understand your intimations otherwise.

--Wendy

Cheryl Langdon-Orr wrote:

...

As Chair of the ALAC I am writing to the Chair and Deputy Chair of the ICANN Board to clarify what I have been led to believe is, 'some concern or confusion' over the status of the ALAC commitment to the Joint User Statement and possibly (this is less clear) the ALAC Statement on GNSO Improvements recently submitted to the Boards attention via email to Mr. Jeffrey (5^th May 2008).

In the email cover to the ALAC Statement on GNSO Improvements (Revision 8 FINAL.PDF) I stated the following to Mr. Jeffrey.

<Snip from email sent Mon 5/5/2008 1:09 PM>

Please accept on behalf of the ALAC, our 'slightly belated' statement to the BGC on GNSO Improvements. This delay was as a result of allowing some additional time for further At-Large Community input into the final drafting of this document after the Joint Statement from the combined User Community was made public 12 days ago, and as a direct result of some concerns / confusion between NARALO and the ALAC per se, regarding the status of NA Regional input into the process of developing the ALAC contribution to the views expressed in the Joint Statement.

Please be assured that this ALAC Statement (to be read in conjunction with the Joint Statement by the User Constituencies) does indeed constitute a majority report as a result of this process, full details of which are to be found on our working Wiki and associated community discussion lists. <end snip>

I had hoped that this would have made clear the status of this document and indeed the Joint Statement that had been presented earlier, clear to the Board, but this appears to not perhaps have been the case.

Further our ALAC Board Liaison Wendy Seltzer (who we realize was not able to attend the last Board Meeting but who is referenced as a future source of information on this matter) recently, raised this issue in a email to Denise Michel and Nick Ashton-Hart, the reply to which was copied to me for reply, and my reply to her on this point is attached to this message for your specific reference.

Over the weekend however Marilyn Cade contacted me with concern having read the BoD Minutes from your last meeting I quote an excerpt here . <snip from email received Sat 5/17/2008 11:30 AM> .just read the Bd minutes and see that there is a challenge on whether the ALAC supports the joint proposal? What is that about? I am seeing Peter /chair here in KL. he is speaking here for me at WITSA. I am urgently concerned about that implication. Philip had assured us that he has handled all negotiations/there was support... but Roberto seems to think that Wendy has new information? this could be a serious challenge for achieving some improvements in how the Bd will proceed. <end snip> My reply to her is included below, and as I have taken the liberty of quoting her (/I do hate paraphrasing so/) I have include her on the CC of this

message.

...

<snip from email sent Sat 5/17/2008 1:29 PM> The Board minutes show that Roberto raised the issue / point that discussion ensued on the PUBLIC At-Large List specifically from Danny Younger leading NARALO /(Beau Brendler a NARALO rep when I spoke to him to discuss his original question re language of the earlier Joint Statement changing in a penultimate version said it was Danny Younger who had noted that even though he raised it to the list)/ to be concerned that the NARAO views had not been properly canvassed .

In a nutshell

1. ALAC used the purpose formed and Regionally balanced ALAC GNSO Improvements WG** to formulate our input into both the ALAC Statement and our role in the Joint Statement. BTW the ALAC Statement was delayed on lodgment until all list views (that got consensus support were included) and what we lodged states both documents need to be read together.

2. This WG included the ALAC ExCo and representation from all 5 regions, in some cases Vanda and Myself we represented both the Regional view and acted as ExCo

3. The NA region is somewhat unique in as much as they do not see (as we now clearly understand) the NomCom appointees to the ALAC as being authorized in any way to reflect their views -> the claim was only elected RALO reps could do that **sigh** unless specific delegated authority had been given for example.

4. The NA Region (/not the RALO/) was on the ALAC GNSO Improvements WG was a NomCom Appointee **and** our GNSO liaison in this capacity (NOTE he would have been in the WG regardless). No NARALO reps had been attending meetings; No offer from NARALO reps was forthcoming when the call was put out for regional representation in the WG.

5. The ALAC GNSO WG treated the Draft Joint Statement as confidential per se until it was finalized which was a tad later that we had hoped and therefore very little time was available for At-Large review (though the preliminary outline had been discussed in terms of what was missing regarding alternate structures for user input a the time the ALAC Statement went out for public comment some 30 days before that and we had said an equitable balanced model was being worked on in the Joint Statement.

6. Some of the NARALO people noted that the final draft of the Joint statement had language that had shifted in degree not intent from earlier drafts that were able to be found on lists that other constituencies had published it to and they questioned why this had occurred and were clearly not able to manage the concept of either negotiated final wording or understanding the desire to keep ALAC as an AC rather that creating a new Registrant constituency which is an Agenda for some of them.

7. Only the NARALO raised concerns all other regions RALO and NomCom were in agreement with the outcomes. It should also be noted that one of the two NARALO elected reps agreed to the language in the Joint statement when it was explained. We also prepared a FAQ to make matters clearer and give background Philip had a copy of that and was well Aware of the rumbles in the Public At-Large list by a few well known characters.

8. No NARALO Rep ever asked the ALAC to either reconsider or alter either our final ALAC Statement OR the endorsement of the Joint Statement. 9. Our ALAC Liaison was not in attendance at the Board meeting, and if asked her personal view would no doubt have reflected that of NARALO but NOT of the ALAC she has not been instructed to other than indicate to the Board that the ALAC and Joint Statements are indeed endorsed, and in fact just the numbers in the ALAC GNSO Improvements WG and the additional ExCo /(who also gave their specific endorsement)/ if they had been required to vote on the matter would have constituted a majority any way.

(.)

Future Policy WG's will however ensure that Regional Representation included elected RALO reps from NARALO as they clearly need to be more involved in development of drafts, and criticism was actually not of the Joint Statement outcome where a balanced model where User interest are clearly part of the process is proposed (though there are a couple of variations that were proposed in the next layer of detail but that can come in on the next stage) but rather one of process. in the matter of direct NARALO input (as opposed to NARegion input) into the process. NARALO like all RALO's were however we should note encouraged to put in their own responses either Directly or in via ALAC (as did occur in a couple of Regions)

As I mentioned to Philip at the time there was considerable concern from parts of ALAC regarding the role of NomCom appointees as discussed in the joint statement, but we knew that.<end snip> **The Members of this WG were:-

C Aguirre (LACRALO)

A Greenberg (NARALO) */This we now accept should have been described as NARegion /*

C Langdon-Orr (APRALO/ALAC Chair),

V Cretu (EURALO)

M El Bashir (AFRALO), and

V Scartezini (LACRALO/Vice Chair)

I should point out that this matter was also discussed at our last ALAC Monthly Teleconference and in the transcript will show that again focus on "issues" with these Statements is now restricted to process matters (i.e. the role of NomCom vs. RALO elected/appointed Reps within ALAC) **not** the outcome and that the focus of our OneDay workshop in Paris with the RALO reps will now be including the topic of 'How to better engage ALS's and RALO's in Policy discussions'. A matter which was also discussed at some length (and which I contributed to) in the recent Policy Unit's Staff retreat in MdR. SO I do not envisage any repetition of this type of matter again. (Assuming RALO's who do NOT see the Regional NomCom appointee as an equitable part of ALAC and who give them delegated authority to act, actually get their Elected Reps to attend more meetings and be actively involved in ALAC and other WG's and subcommittees.)

Finally, I must assure you that extensive effort was made to ensure that the At-Large Community was involved in final commentary of the ALAC Statement (if the Board desires I am sure At-Large Staff would be happy to prepare a detailed briefing on these specifics) and this statement (which could have been lodged with the Board on 25^th April) was delayed until after the Joint (UC) Statement was able to be made public, reviewed and commentary in reaction to it was therefore able to be included in the ALAC Statement which deliberately did not address the proposed tripartite model presented in the UC but which had been referred to in the April ALAC Meeting, by the GNSO Improvements WG who had continued involvement. And remembering that these Statements are from the ALAC; RALO's ALS's and indeed others could have and should have made their own contributions if it was felt the ALAC consensus view did not sufficiently explore their minority ones (globally speaking). And it is the ALAC consensus and support of all recently submitted ALAC (and the Joint UC) Statements that this missive is outlining to the Board.

In closing should you or the rest of the Board require any further information from me as Chair of ALAC on this topic, I will be more than happy to provide it, and I remain at your convenience for a telephone conference call at any time on this or other matter relating to the ALAC.

My phone number is +61 2 96521047.

Should you as Chair and Deputy Chair of the Board seek to formalize more regular interaction with me as Chair of ALAC (or indeed with the ALAC ExCo who meet monthly in the alternate fortnight to the ALAC) including occasional/regular telephone link up at these meetings or on an ad-hoc basis then please just let me know.

Kindest regards,

Cheryl Langdon-Orr

ALAC Chair 2007-2008

-- Wendy Seltzer -- wendy@seltzer.org phone: +1.914.374.0613 // office: 617.373.7331 Visiting Professor, Northeastern University School of Law Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/ https://www.torproject.org/

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