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

Sat Dec 26 18:30:25 UTC 2015

Never said it was limited to human rights.  Said it needed to be rooted
in human rights.
And yes, it is interpreted by the diversity of stakeholders, in ICANN's
case, in the context of their concerns and within ICANN's global mission.

National PI is something that is brought in within the GAC and will be
part of their consensus advice.
If we ignore GPI in the wider sense, as so many seem to wish to do, we
end up in a situation where the only people talking about public
interest are the members states of the GAC from their national
perspectives.  That would not seem optimum to me

avri

On 26-Dec-15 12:25, Kavouss Arasteh wrote:
> 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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