[CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Sat Dec 26 17:25:57 UTC 2015

Avri,
GPI is not limited to HR.
Any description of GPI will be subject to challenge due to the fact that GPI is a cumulative of national/nation PI which varies   From country to country snd culture to culture.
Regards
Kavousd        

Sent from my iPhone

> On 26 Dec 2015, at 16:25, Avri Doria <avri at acm.org> wrote:
> 
> 
> 
> I think what you are expressing in your two dichotomies is a perversion
> of a the national understanding of public interest.  This is not Global
> Public Interest (GPI), but national prejudice and politics.
> 
> We are talking about a Global Public Interest that is always rooted in
> the Human Rights that have been agreed to by most all nations, and that
> are as applicable on the Internet as off.  In CASE 1, the fact that
> nation states infringe these rights and incite their people to do so,
> does not determine these action as being in Global Public Interest.
> 
> As with most thought experiments, the issue is misdirected. The problem
> is not understanding the source of national actions. The problem is in
> understanding what the GPI might be in the global ICANN context.  I
> agree with those who argue that it can't be fully predicted a-priori in
> some academic exercise.  It is something that needs to be discovered
> through our bottom-up processes that not only takes the bottom -up
> understanding into account but deals with their diversity and always has
> at its root ICANN principles, including adherence to International legal
> instruments including human rights.  The GPI is always in the process of
> further discovery in each new circumstance and issue.
> 
> This process based understanding does not mean we can, therefore, ignore
> GPI.  I disagree with all those who argue that GPI should be put aside
> because it is hard to figure out.  Our policy process has to embody  the
> process of discovering the GPI in the context and mission of ICANN in
> each case. I agree that we will never know the all of GPI in any finite
> sense, but that does not mean it can be ignored.  We have to constantly
> work to understand the GPI as we discuss policy.  This discovery has to
> be a central tenet in all ICANN processes.
> 
> It also does not mean that the Board gets to decide on GPI.  Yes, their
> 'end of the day' vote and ensuing bottom-up negotiations are are part of
> developing that understanding, but they are not the ones to determine
> whether something is or is not in the GPI.  They may question whether
> something is and send the question back for further discussion, but the
> idea that the Board could make a decision that something is not in the
> GPI is absurd.  The absurdity is vividly expressed when we read that
> they are capable of stating that human rights might not be in the GPI,
> when human rights are first and foremost the principles on which GPI
> must be based.  In your examples case 1, is definitely a case where
> human rights is a determinant that option 1B is a crime not GPI.  In the
> second example, the issue is one that is still in the process of a the
> tussle among several human rights and the discussion goes on. The cases
> pretend to be parallel, but they aren't.  In Case 1, no one is harmed by
> someone's sexual preference or gender expression, and persecution of
> types of people is never in keeping with human rights standards.  In
> Case 2, the question is of the harm that may or not be caused by words
> is the basis of the determination.
> 
> The process of discovering the GPI must be part of our work at ICANN.
> 
> avri
> 
>> On 26-Dec-15 07:48, Nigel Roberts wrote:
>> This might be a minority position, but from my perspective, it is, by
>> definition, impossible to define the global public interest.
>> 
>> Public interest (except in an academic sense) is defined by what the
>> relevant public authority thinks is the public interest. And the
>> relevant public authority is a construct of the nation-state.
>> 
>> As a gedankenexperiemnt, perhaps you might just take a moment to agree
>> or disagree with the following statements :-
>> 
>> 1a. It is in the public interest that LGBT people have the same rights
>> and obligations as everyone else, and that anyone seeking to prevent
>> this objective should face legal sanctions
>> 
>> 1b. It is in the public interest that deviant behaviour, as exhibited
>> by LGBT people is severely punished with legal sanctions.
>> 
>> 
>> 2a. It is in the public interest that anyone be allowed to say
>> anything they like, short of saying things which cause actual harm
>> (such as falsely shouting 'fire' in a crowded theatre).
>> 
>> 2b. It is in the public interest in a democratic society that there be
>> some restrictions on what you can say or publish, particularly where
>> the speech or publication argues in favour of e use of non-democratic
>> or violent means to overthrow the constitutional order, or is said by
>> certain organisations which have committed to such non-democratic
>> overthrow.
>> 
>> In some nations, 1b is the correct definition of the public interest,
>> while 1a is anathema.
>> 
>> In some nations 2a is the correct definition of the public interest,
>> whilst in a number of Western nations, that is 2b.
>> 
>> (You can imagine I have particular countries in mind in the examples
>> above, but it's not necessary to name them)
>> 
>> HOWEVER Regardless of the view of your society takes is of the above
>> dichotomies, it is submitted that is the clearest possible example
>> that a 'global public interest' will remain unsusceptible to
>> definition, and any attempt to do so, is doomed to failure.
>> 
>> 
>> 
>> Nigel
>> 
>> 
>> 
>> 
>> 
>> 
>>> On 26/12/15 11:46, Edward Morris wrote:
>>> Hello Bruce,
>>> Thanks for this summary of the Board's concerns regarding Inspection
>>> rights, a restatement of the view offered by the Board in it's 14
>>> December 2015 public response to the CCWG work stream one Proposal
>>> of  30 November 2015.
>>> Upon reading it would appear to me that this Board response did not
>> take
>>> into account in it's comment the 10 December 2015 memo concerning
>>> Inspection proffered by the CCWG independent counsel (copy attached).
>>> I'm very supportive of and excited about the general  way forward
>>> proposed by Counsel, notwithstanding that there are still several
>>> options for the community to consider within the context of the
>> memorandum.
>>> Am I correct in my supposition that the contents of the aforementioned
>>> memo were not considered during the Board's deliberation on Inspection
>>> that resulted in the position taken and published in the Board's 14
>>> December 2015 public comment?
>>> Kind Regards,
>>> Edward Morris
>> ------------------------------------------------------------------------
>>> *From*: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
>>> *Sent*: Thursday, December 24, 2015 11:27 AM
>>> *To*: "Accountability Cross Community"
>>> <accountability-cross-community at icann.org>
>>> *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third
>>> CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations
>>> Hello James,
>>> 
>>> 
>>>>> With respect Bruce that is a total misleading description of the
>> transparency proposals that are in the CCWG’s 3rd Draft, the
>> requirements that the CCWG have identified are based entirely on the
>> existing California corporations code that hundreds if not thousands
>> of non-profits both smaller and larger than ICANN adhere to on a daily
>> basis without having a large staffing contingent to support that
>> requirement.
>>> 
>>> I don’t believe I provided a description of the transparency
>> proposal in
>>> the CCWG 3rd draft. I was responding to the general allegation that the
>>> Board did not support transparency.
>>> 
>>> Our formal written feedback was provided in the context of the
>>> California corporations code. The law relating to access to records is
>>> quite brief, we have provided concrete processes implementing this
>> power
>>> on the context of ICANN. We expect the processes set out in the bylaws
>>> will ultimately be adjudicated by the IRP process - and not a
>> California
>>> court - so more detail on the processes is needed.
>>> 
>>> We have actually gone beyond the bare minimum requirements in the
>>> corporations code - which relate to minutes of meetings and accounting
>>> records. We already provide much of that information publicly - so
>> there
>>> is no need to visit the office and review minutes for example. We also
>>> provide quarterly financial reports. Accounting records on their own
>>> provide information on income received and suppliers paid. It doesn't
>>> always give you context.
>>> 
>>> 
>>> We stated:
>>> 
>>> The Board supports a well-defined right of inspection of accounting
>>> records and minutes of meetings in support of the community powers.
>>> 
>>> The Board proposes that the inspection right be framed in the Bylaws as
>>> follows: The community will have a right to seek accounting records and
>>> minutes of meetings that are related to the exercise of the Community
>>> Powers. To obtain records, the community should have a minimum of two
>>> SOs/ACs seeking a Community Forum on the topic, and no fewer than three
>>> SOs/ACs supporting a request for the records. The Sole Designator
>> should
>>> have the power to enforce ICANN’s failure to abide by the records
>>> request, following an escalation path (as appropriate) of
>>> reconsideration, Ombudsman and ultimately IRP; the right to the records
>>> rests in the Empowered Community.
>>> 
>>> This formation achieves a few objectives. First, similar to the use of
>>> inspection rights in the membership structure, this gives the community
>>> special access to records that are tethered to the powers that the
>>> community holds. Second, it reinforces the Empowered Community as
>> having
>>> interests in the records, as opposed to making the Sole Designator as a
>>> separate power structure within ICANN. Third, because the inspection
>>> rights are tethered to the community powers, the Sole Designator is not
>>> being asked to take on inspection or investigatory powers that are
>>> beyond its enforcement role. With these limitations, the Board would
>>> support the inclusion of inspection rights in the Fundamental Bylaws.
>>> 
>>> New Commitment to Investigations
>>> 
>>> Separately, the Board understands that there could be areas where the
>>> community might wish to have additional power in requiring – and having
>>> transparency into – investigations of potential fraud or financial
>>> mismanagement in ICANN. To address these concerns, the Board supports
>>> the development of the following inspection or audit process: Upon
>> three
>>> SOs/ACs coming together to identify a perceived issue with fraud or
>>> mismanagement of ICANN resources, ICANN will retain a third-party,
>>> independent firm (acceptable to the SOs/ACs that have identified the
>>> issue) to undertake a specified audit to investigate that issue. The
>>> audit report will be made public, and the ICANN Board will be required
>>> to consider the recommendations and findings of that report. The
>>> investigatory process should first be developed outside of the ICANN
>>> Bylaws, and can be incorporated into the Bylaws when appropriate.
>>> 
>>> Allowing for the right to access specific documents related to the
>>> community powers, as well as a new ability to trigger third-party
>>> investigations, addresses the community concerns of greater access to
>>> documents and additional accountability in operations. These two
>>> companion processes provide a clear line between information that is
>>> appropriate for general public release (transparency), and information
>>> that may be confidential or proprietary but necessary to review if
>> there
>>> are concerns raised about management practices.
>>> 
>>> 
>>> Regards,
>>> Bruce Tonkin
>>> 
>>> 
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>>> 
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