Dear Avri, Dear All. Thank you very much for your comments I have one question which continued to bother me as everyone refers to «community" What is that magic term "community» covers? Does it includes or embrace the entire multistakeholders? As it was discussed at several occasion, there is a defacto agreement that ,generally speaking multistakeholder composed of Civil Society Private Sector, Technical Community including academics Governments In your views and the views other those who repeatedly refer to "Community" do they mean; Global Multistakeholer" as described above. If that is the case how the " community" fits in that overall description. When there are comments received from «community" have we checked whether all four categories of multistakeholder have commented? Do we treat the comments with equal footing. I know that your are defending the equal rights of the constituency In CSTD you defended that equality of rights for more than 2 hours and finally succeeded to win How we decide whether comments from a limited number of people ( mostly those who comments on everything are representing which of those four categories of community How we have taken into account whether the number of comments is representative of the entire multistakeholder . I give you an example, for the issue of ICANN accountability at one point of time ICANN mentioned based on 17 comments it modified the approach previously submitted. Did we checked whether all four categories of Multistakeholder commented ? Have we checked whether any Government commented or as they are frustrated they did not? What footing criteria were used to conclude on the representativeness of the comments? Did we consider comment made on behalf on a big community with equal footing with comments received from an individual who spoke on behalf of herself or himself? We need to be careful when we refer to the term “ community” Until the time that the constituents of Global Multistakeholder Community is not clearly specified and their footing are not agreed ,it is difficult to associate any serious value to the comment received from a limited number of permanent commenting people which may not representing the community as such. Best Regards Your friend Kavouss 2015-01-02 16:42 GMT+01:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:

Dear Kavouss

I reply to you privately simply because I think we have pretty much exhausted our friends on the listserve. I found your answer fascinating. And I think, in the end, the difference lies in the perspectives of our different worlds. Where I work (here in Washington DC) if I am going to have a fight with someone, it is often beneficial to create a public perception that I am being reasonable and the other fellow is the one who is being unreasonable – and having the Board say “no” to my question would help me in that regard.

Best wishes

Paul

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*From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] *Sent:* Friday, January 2, 2015 9:10 AM

*To:* Paul Rosenzweig *Cc:* Seun Ojedeji; <accountability-cross-community@icann.org> *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes are made

Dear Paul,

Dear All

I am coming back to reply to your kind responses on which we have major agreement on the substance but different views on the approaches.

Let me just clarify my points that I raised many times and no answer was give.

Currently, there is constitutional and legal mechanism for ICANN accountability

On the other hand, there are some sort of optional accountability ( in form of ATRT Recommendations and comments received from a limited number of people ( Public Comments )

However, there is no mechanism at all to verify whether the responsibilities entrusted to the Board have been properly held or implemented.

Moreover, there are not any constitutional (legally adopted) by stakeholder accountability terms and conditions.

We have bylaws crafted by board and under the Board authority to modify and or update

In my view having more than 40 years of constitutional experience the Board is no more than an executive entity

What they execute is AoC and Bylaws .The first one is designed to meet the NTIA requirement .The second one is a quasi-unilateral provisions crafted by Board and commented by a limited number of people ( public ) without knowing that whether or not that limited number of people commented represents the entire multistakeholders ( Civil Society, Private Sector, Technical Community including Academics and last but not leased Governments )

There is no separation of authority between those who establish policy/ Multistakeholders or their legally designated or elected representatives with appropriate footing and those who implement policies ( ICANN) and in particular the policy itself ( modified version of AoC plus modified Bylaws ) Every thing is mixed.

Currently ICANN is at least is responsible to NTIA for certain actions and responsible to UNKNOWN Public for certain other actions .Once the transition is done the entire responsibilities goes to that UNKNOWN Public without having any authority to scrutinize actions implemented and no authority to sanction those who did not implement the established policy

Now CCWG is making every effort to clarify the situation .We are at the beginning of the process. In my view, that takes many months if not many years to do so .

Now you and those supporting your approach consider that we need to ask the Board in an upfront approach what they believe implementable and what believe Un/ Non implementable

Allow me dear Paul to describe the scenarios.

We would wish to ask an entity whether or not that entity agrees that we a) limit its authority) designating or establishing a mechanism for overnighting their action and c) implement sanctions if they have not or will not perform their duties as prescribed by the Policy Terms and condition

Now I am asking this simple question

Do you know any one or any entity wants that a) ,b) and C) individually and or/ collectively be implemented in her or his regard?

In this world that we are living no one wants to be limited in authority nor being held more responsible than she or he is currently responsible and more importantly no one which is not under any sanctioning rules to be under that rules

If the answer is yes, then we should not raise any question to them at all.

Moreover, does the legislating authority ask the executing authority which kind of authority sphere or responsibility domain it wishes to perform its function?

The answer is no

The legislator establishes the laws and rules and the executing entity MUST implement that Law or Rule.

However, in devising those laws and Rules there is continuing dialogues between the two CCWG and ICANN Board.

In summary, in view of the above, we should not raise any such questions to the Board but continue to exchange views between the Board and CCWG ,as appropriate

Kavouss

2015-01-02 9:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:

Dear Paul,

Thank you very much in deed to kindly answering my question.

Yes it helps ( your clarification) .

I will revert to you in few hours

Thanks again for your kind answer and analysis

Kavouss

Sent from my iPhone

On 2 Jan 2015, at 00:08, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:

Dear Kavouss

Thank you for this question which is a very sensible one. Let me try to clarify what I am trying to accomplish by my proposal.

I am a complete and firm support of Board accountability to the Community. That is 100% clear and I think you and I are in firm agreement on that.

I may, however, not be clear about my method and process. From my perspective the strongest accountability would be with a clear Bylaw limitation on ICANN functionality and a provision for an outside arbiter. Both of those changes would require Board approval. I am not trying to subordinate the CCWG to the Board. Far from it – what I am trying to do is find out as early in the process whether the Board is going to be willing to agree to subordinate itself to the Community through those mechanisms.

So, I think the place where you may misunderstand me is at the very end of your note – where you say “why you want to limit CCWG to just follow those areas of accountability that Board wishes?” I think you are assuming that if the Board said “no” to the questions I was asking that my reaction would be to say “oh … oh well. That is OK. If the Board won’t agree, we can’t do it.”

My real reaction, in practice, would be exactly the opposite – I would urge the Community to dig in for an extended discussion with the Board and use my limited powers of persuasion to rally the community to demand that the Board changed its mind. J And I would probably urge CCWG to recommend those same things anyway – but at least we would do that knowing what was going to happen.

Does that help?

Regards

Paul

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*From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com <kavouss.arasteh@gmail.com>] *Sent:* Thursday, January 1, 2015 4:39 PM *To:* Paul Rosenzweig *Cc:* Seun Ojedeji; accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes are made

Dear Paul,

The way you commenting on the matter could have two different interprétations or leave two different impressions:

A) You are a firm supporter of accountabilty process when we note your comments about Mathieu

B) You wish to raise the question Under discussion to the Board asking what they wish to see from CCWG and what they do not see from CCWG .The latter interpretation ,in my view, seems to be subordinating CCWG to the Board in the sense that we just study, elaborate and recoomend those area of accountability that Board is comfortable with but not CCWG address the full picture, objectives, requiremnets of accountability.

Pls find a coherence between interpretation A) and interpretation B) .In order words if you are really in favour of addressing the accountability in a fullflege scope why you want to limit CCWG to just follow those areas of accountability that Board wishes? Thank you very much to clarify your position.

Best Regards

Kavouss

2015-01-01 21:35 GMT+01:00 Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com>:

Bruce is a wonderful man. But we don’t need his opinion, we need a formal commitment from the Board. That’s why we need to ask the question in an official manner.

Indeed, I would posit that if the accountability working group tasked with ensuring accountability by ICANN is reluctant to even ask the Board a question then the communities capacity to actually reign in Board excess when/if it perceives such would be very limited. If we are so unwilling to even ask a question, will we be willing to tell the Board “no.”

In any event, if we choose not to ask this question, then the scope of WS1 has just expanded to essentially include almost all oversight mechanisms we might conceivably want – which would, I think, be the wrong result.

Warm regards

Paul

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*From:* Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] *Sent:* Thursday, January 1, 2015 10:09 AM *To:* Seun Ojedeji *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] Regarding how bylaw changes are made

Dear All

I agree to the term that no one should dictate the CCWG.

Still why there is a need that we raise any such question to the Board,

Bruce is quite active and requested to continue the Liaison

Kavouss

Sent from my iPhone

On 1 Jan 2015, at 15:28, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

Hi Bruce,

Thanks for this information, I will then suggest that this WG determine if those steps will indeed be appropriate for us especially since WS1 is more of a perquisite to transition. One would expect some adjustments on timing and wording rights to be made in the process, also board voting rights in this particular process may need to be agreed upon. It will not be encouraging to have implementation stopped on the basis of no 2/3 board majority....time utilization is an important factor in all these. So the earlier we involve board (without having them dictate for us) the better.

Regards sent from Google nexus 4 kindly excuse brevity and typos.

On 1 Jan 2015 04:55, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Seun,

...

...

I think writing to board to know how it will treat the WG outcome especially when some of it's implementations will require by-law modifications that further involve the ICANN community in decision making process may be useful.

In terms of the process for making bylaws changes, changes have previously been made to accommodate recommendations from the review teams associated with the work of the Accountability and Transparency Review Teams (ATRT) https://www.icann.org/resources/pages/atrt-2012-02-25-en .

Any archive of all previous versions of the bylaws is available here: https://www.icann.org/resources/pages/archive-bc-2012-02-25-en

Based on our current practice I would expect the process to be as follows:

- Board accepts recommendations from the CCWG

- General Counsel's office prepares specific text to change in the bylaws

- proposed bylaws changes are put out for public comment (45 days)

- Board then votes on the bylaws amendments - a 2/3 majority of the Board is required to make a bylaw change

If there is significant community comments against the proposed bylaws language - then a new draft of the bylaws would be put out for public comment that is consistent with the recommendations from the CCWG.

Regards, Bruce Tonkin

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