[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Edward Morris egmorris1 at toast.net
Tue Jul 7 12:23:58 UTC 2015


Hi Avri,

Thank you very much for your comprehensive response. It's very helpful. I
need to think about it and evaluate things before responding.

Again, thanks for making the effort so I better understand your views and
can challenge my own.

Ed

On Tue, Jul 7, 2015 at 12:52 PM, Avri Doria <avri at acm.org> wrote:

> Hi,
>
> To start,  I believe that facts are just things that people believe to
> be the case.  I try not to speak of anything stronger that a belief.
> Both my personal history and world history, even history of science -
> that bastion of fact, shows me that yesterday's Fact is often just a
> matter of prejudice, superstition and point of view.
>
> In terms of the accountability problem with the membership model, it has
> been discussed before.  Fairly extensively. Some of the gaps such as
> those exposed by the UA have been eliminated, but others have not.  Some
> involve the degree to which the various SOAC are really the solid
> organizations we portray.  As I wrote in an earlier message where i
> spoke of the SOAC themselves:
> > Having been a member or observer of many of these entities I have fond
> > that they are often disorganized, ruled by a few strong personalities in
> > a sea of apathy, and given to making up rules on the fly when needed.
> > They do not even necessarily follow the rules they have agreed to in the
> > charters, though some do, not all of them.  And for the most part, though
> > they are supposed to transparent, most aren't.
>
> Are these structures really fit of unchecked rule?  How can we show that?
>
> For me the primary deficit is the loss of checks and balances.
>
> The current system relies on a set of checks and balances between the
> Board and the rest of the community.  The current problem is that the
> power of the rest of the community seem too weak to many, allowing the
> Board to seemingly work  without any checks on its activities.
>
> By strengthening the community in the designator model, we strengthen
> the set of checks and balance between the Board and the rest of the
> community.   By doing so, we increase accountability.
>
> There is a reciprocity in this notion of accountability, one that does
> not require external oversight. We vote them in,  can appeal the board
> in a serious manner and will  even be able to  vote them out by some yet
> to be determined procedure.  And the Board, can review the degree to
> which the stakeholder groups are fulfilling their mandate to represent
> the larger community within the ICANN mission.  In a sense there is
> mutual reciprocal oversight. The Board and the rest of the community
> check each other and establish a functional balance.  Most of the this
> CCWG's activities are working on the details of these check and balances.
>
> That is other than the grand reorganization of ICANN into a membership
> organization.  Something that leaves the current check and balances
> behind and attempts to create a major new structure.
>
> In the designator model the Board can make decisions and we can appeal
> them. And we make recommendations and give advise the Board needs to
> give it serious consideration on penalty of appeal. In extreme case they
> can be removed from their duties and we can be subjected to  discussions
> of reorganization.
>
> Going to the membership model eliminates this balance by giving the
> putative community representatives supreme power.  How can that power be
> appealed?  Can membership decisions be appealed, by whom and to whom?
> Who determines whether the ACSO are adequately representing the global
> community and living up to their obligations under the bylaws?
> Membership turns the Board into an administrative unit without
> sufficient power to act as a check or balance to  the ACSOs.
>
> Eliminating any checks and balances on the ACSO from the accountability
> equation seems to be a critical failure to me in the creation of a new
> accountability regime.  Perhaps if we were going with the individual
> membership option a degree of accountability to global members could be
> argued, not sure.  But I believe  that is not what we are working on as
> that would involve even greater difficulty to get right. We are not even
> working on a model where organizations that exist on their own come
> together to form a group.  Our ACSO are artificial organizations created
> by and within ICANN.  Our multistakeholder model depends on the
> interaction and interplay of these organization with the Board and on
> the checks and balances between them.
>
> Perhaps you have 'fact based' responses to all the possible
> accountability questions that NTIA might ask us about this new power
> structure you favor.  I do not believe that you can show how the ACSO
> will be responsible to the global Internet community.  I do not believe
> you can show how a rogue set of ACSO can be stopped from doing things
> that harm the organizations or the Internet without allowing the Board
> some degree of decision making based on the confluence of
> recommendations and advice received from the various ACSO and the
> greater community.
>
> As was stated in the call by NTIA, it was up to us to show how anything
> new we created could be held accountable.  As far as I can tell in
> membership there is no way to hold the members accountable.  In the
> designator model we show how we are adding accountability measures.  In
> the membership model we require the ACSO to verify their own
> representativity, but I have seen no expression of how they can do that
> or show that it is the case.  When I speak of having a "much higher
> threshold" in proving ACSO accountabilty to the global public interest,
> this is what I mean. How are you going to prove, as you say - with the
> facts that you believe in, that the membership model is more accountable
> given its unassailable postion in a membership organization.
>
> I have seen no evidence of membership creating greater accountability to
> the global public interest.  I cannot state that I believe it is
> impossible for it to do so, just that I have seen no evidence of it.
>
> avri
>
>
> On 06-Jul-15 21:01, Edward Morris wrote:
> > Hello Avri,
> >
> >
> >     I believe membership raises the issues of accountability to the full
> >     diversity of stakeholders to a much higher threshold, including the
> >     issue of the degree to which ICANN is accountable to stakeholders not
> >     included among our SG/C/RALO/ALS / as well as among parrticpating CCs
> >     and govts.
> >
> >
> >
> > Please, if possible, raise your concerns stating fact rather than
> > belief. Maybe there is something I have missed. There is absolutely no
> > difference in the openness to non ICANN stakeholders between the
> > empowered membership and empowered designator models. At least I don't
> > see any. Both are based upon the current SOAC's. If there is a
> > difference in this area  I need to and want to be educated. Please
> > respond with specific and detailed instances or examples of why what
> > you claim is true is. Vague generalities are not particularly helpful.
> > Again, I am open to be educated and persuaded but with substantive
> > fact rather than vague as yet unsubstantiated beliefs.
> >
> > No model is as open to non SOAC's as is Malcolm's proposal for
> > individual membership. That, again, is a membership model. Do you
> > support this open membership model and if not why not? Would you
> > prefer other models to be looked at that are not based upon the
> > SOAC's? I think that would be a very reasonable position and one I
> > certainly am open to supporting if a workable model would be proposed.
> > As yet I have not seen one. Have you? Should we try to find one?
> >
> >
> >
> >     I think enough of the comments bring out questions of
> >     accountability in
> >     a mebership organization to make the membership option less than
> >     optimal.
> >
> >
> >
> > What comments are you referring to? Certainly not the public comments
> > which were basically supportive of membership. Are these comments you
> > refer to  based upon vague generalities or specific problems? If there
> > are specific problems what specifically are they? Should we not
> > determine whether there are solutions to those problems rather than
> > just dismissing the model outright? If not, what are your views as to
> > the ultimate apparent unenforceability of the designator model in
> > certain areas? Do you disagree with Paul Rosenzweig when he states
> > that "a direct community veto of budget and strategic plan remains
> > essential to accountability"? If not, what do you propose to do in
> > these areas without membership. Should we simply forget them?
> >
> > I do think there may be another option or two out there and hopefully
> > working with our counsel we'll find them.
> >
> > In the interim,  I really am looking to be educated. No one has taught
> > me more about ICANN since I became involved in it than you Avri. I'm
> > just not easily persuadable by vague opinions, I'm a fact based sort
> > of guy. As this process has moved forward I've seen your views and
> > positions change. To me, that is an admirable  sign of someone truly
> > looking for an optimal answer rather than one who is clinging to a
> > defined position. I'm just having some trouble understanding,
> > factually,  the specific objections you are now raising about
> > membership. I hope you can help me understand so I can better test and
> > evaluate my own views..
> >
> > Thanks,
> >
> > Ed
> >
> >
> >
> >     On 06-Jul-15 19:05, Edward Morris wrote:
> >     > +1. Well said.
> >     >
> >     >
> >     > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck
> >     <JZuck at actonline.org <mailto:JZuck at actonline.org>
> >     > <mailto:JZuck at actonline.org <mailto:JZuck at actonline.org>>> wrote:
> >     >
> >     >     Hmm. I think it’s important to bear in mind that there was
> >     >     overwhelming consensus among the public comments to support the
> >     >     membership model. The detractors from the model, while
> important
> >     >     and perhaps critical, are not in the majority. I’m not sure
> this
> >     >     process speaks to how we better use counsel as much as how we
> >     >     achieve consensus on principles.
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >     *From:*accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>
> >     >     <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>
> >     >     [mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>
> >     >     <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>] *On
> >     >     Behalf Of *Seun Ojedeji
> >     >     *Sent:* Monday, July 6, 2015 3:50 PM
> >     >     *To:* Becky Burr
> >     >     *Cc:* accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>
> >     >     <mailto:accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>>
> >     >     *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what
> >     >     have they beenasked to do?
> >     >
> >     >
> >     >
> >     >     Hi Becky,
> >     >
> >     >     Thanks for asking, item 3 is actually in connection to the fact
> >     >     that such veto may not be possible without item 1(as I
> >     understood
> >     >     it) and that is why I said an indirect veto can happen not
> >     that I
> >     >     was entirely suggesting that those powers be off the table.
> >     >
> >     >     It seem however that folks are only looking at the powers
> >     and not
> >     >     at what it will take to have them.
> >     >
> >     >     By the way, I also did put in a reservation that we may not
> >     >     necessarily agree with those views but my concern is mainly
> that
> >     >     the ccwg does not spend so much time developing proposals
> >     that we
> >     >     know has certain implementation requirements that are not
> >     >     compatible with the ICANN community structure. I think we
> should
> >     >     learn from the the past (based on comments from the last PC)
> and
> >     >     utilize legal council and volunteer hours more effectively.
> >     >
> >     >     FWIW speaking as participant.
> >     >
> >     >     Regards
> >     >
> >     >     On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr at neustar.biz
> >     <mailto:Becky.Burr at neustar.biz>
> >     >     <mailto:Becky.Burr at neustar.biz
> >     <mailto:Becky.Burr at neustar.biz>>> wrote:
> >     >
> >     >         Seun,
> >     >
> >     >
> >     >
> >     >         I am not sure why we would take direct budget/strat plan
> >     veto
> >     >         off the table.  Could you explain? Thanks.
> >     >
> >     >
> >     >
> >     >         Becky
> >     >
> >     >         J. Beckwith Burr
> >     >
> >     >         *Neustar, Inc. /* Deputy General Counsel and Chief
> >     Privacy Officer
> >     >
> >     >         1775 Pennsylvania Avenue NW, Washington, DC 20006
> >     >
> >     >         Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932>
> >     <tel:%2B%201.202.533.2932>  Mobile:
> >     >         +1.202.352.6367 <tel:%2B1.202.352.6367>
> >     >         <tel:%2B1.202.352.6367>  / becky.burr at neustar.biz
> >     <mailto:becky.burr at neustar.biz>
> >     >         <mailto:becky.burr at neustar.biz
> >     <mailto:becky.burr at neustar.biz>> / www.neustar.biz
> >     <http://www.neustar.biz>
> >     >         <http://www.neustar.biz>
> >     >
> >     >
> >     >
> >     >         *From: *Seun Ojedeji <seun.ojedeji at gmail.com
> >     <mailto:seun.ojedeji at gmail.com>
> >     >         <mailto:seun.ojedeji at gmail.com
> >     <mailto:seun.ojedeji at gmail.com>>>
> >     >         *Date: *Monday, July 6, 2015 at 11:09 AM
> >     >         *To: *Robin Gross <robin at ipjustice.org
> >     <mailto:robin at ipjustice.org>
> >     >         <mailto:robin at ipjustice.org <mailto:robin at ipjustice.org>>>
> >     >         *Cc: *Accountability Community
> >     >         <accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>
> >     >         <mailto:accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>>>
> >     >         *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and
> >     >         what have they beenasked to do?
> >     >
> >     >
> >     >
> >     >         Hi,
> >     >
> >     >         I have no problem with having a new proposal presented.
> >     >         However it is important that there some adherence to basic
> >     >         principles on proposals that the ccwg would not want to
> >     >         explore. Three areas comes to mind:
> >     >
> >     >         - Its my understanding that anything that will turn
> some/all
> >     >         of the SO/AC to members and thereby exposing them to legal
> >     >         challenge is not acceptable
> >     >
> >     >         - Its my understanding that anything that allows removal of
> >     >         individual board member without the approval of the
> >     entire(or
> >     >         larger part) of the community is not acceptable
> >     >
> >     >         - Its my understanding that a solution that allows direct
> >     >         community veto on certain elements like budget,
> >     strategic plan
> >     >         et all is not acceptable but an indirect enforcement
> >     could be
> >     >         considered (i.e using a power to get another power executed
> >     >         indirectly)
> >     >
> >     >
> >     >
> >     >         Some/none of the above may be acceptable by us, but my
> point
> >     >         is that there should be some focus going forward,
> especially
> >     >         if the target of ICANN54 is to be meet
> >     >
> >     >         Regards
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >         On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross
> >     >         <robin at ipjustice.org <mailto:robin at ipjustice.org>
> >     <mailto:robin at ipjustice.org <mailto:robin at ipjustice.org>>> wrote:
> >     >
> >     >             I would also like to hear what they propose at this
> >     >             stage.  I really don't see how it could hurt to have
> >     >             another proposal to consider.  Larry Strickling did
> >     say he
> >     >             wanted us to be sure we examined all the options
> >     carefully.
> >     >
> >     >
> >     >
> >     >             Thanks,
> >     >
> >     >             Robin
> >     >
> >     >
> >     >
> >     >             On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
> >     >
> >     >
> >     >
> >     >                 I agree.  We should have the benefit of their
> >     thoughts.
> >     >
> >     >
> >     >
> >     >                 Greg
> >     >
> >     >
> >     >
> >     >                 On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter
> >     >                 <jordan at internetnz.net.nz
> >     <mailto:jordan at internetnz.net.nz>
> >     >                 <mailto:jordan at internetnz.net.nz
> >     <mailto:jordan at internetnz.net.nz>>> wrote:
> >     >
> >     >                     Well, I would really really like to see what
> the
> >     >                     creative thinking they have done has
> >     suggested. I
> >     >                     trust our ability as a group to make decisions,
> >     >                     and do not believe we should cut off input from
> >     >                     any direction...
> >     >
> >     >
> >     >
> >     >                     Jordan
> >     >
> >     >
> >     >
> >     >                     On 7 July 2015 at 01:13, James Gannon
> >     >                     <james at cyberinvasion.net
> >     <mailto:james at cyberinvasion.net>
> >     >                     <mailto:james at cyberinvasion.net
> >     <mailto:james at cyberinvasion.net>>> wrote:
> >     >
> >     >                         Hey Avri,
> >     >
> >     >
> >     >
> >     >                         Yes the 3rd model was brought up, and the
> >     >                         lawyers feel that it might be a cleaner way
> >     >                         for us to get the powers that we need.
> >     >
> >     >                         But without a call from the CCWG to
> >     present it
> >     >                         they feel that its not their position to
> >     >                         propose a model on their own initiative.
> >     >
> >     >
> >     >
> >     >                         Personally i would like to see what they
> >     have
> >     >                         come up with but the CCWG would need to
> >     ask as
> >     >                         an overall group for the chairs to
> >     direct them
> >     >                         to give some more information on the
> >     model if
> >     >                         we wanted it.
> >     >
> >     >                         I think if after we hear from them on
> >     Tuesdays
> >     >                         call we still feel we might have some
> >     >                         shortcomings that it might be the time
> >     to ask
> >     >                         them about the 3rd option.
> >     >
> >     >
> >     >
> >     >                         Also +1 I think they are really enjoying
> the
> >     >                         work and are finding themselves getting
> more
> >     >                         and more involved as we go on, which is
> >     great
> >     >                         for the CCWG as the more background and
> >     >                         details they know the better that are
> >     able to
> >     >                         give us solid well reasoned advice in my
> >     opinion.
> >     >
> >     >
> >     >
> >     >                         -James
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >                             On 6 Jul 2015, at 13:19, Avri Doria
> >     >                             <avri at acm.org <mailto:avri at acm.org>
> >     <mailto:avri at acm.org <mailto:avri at acm.org>>> wrote:
> >     >
> >     >
> >     >
> >     >                             Hi,
> >     >
> >     >                             I have not had a chance to get back
> >     to the
> >     >                             recording of the  call.  Not
> >     >                             sure I will, that time was the time
> >     I had
> >     >                             for that call and that is why
> >     >                             i was listening then.
> >     >
> >     >                             In any case, the lawyers were talking
> >     >                             about a new model they had come up
> >     >                             with, but not knowing what to do
> >     about it
> >     >                             since they had not been asked
> >     >                             for a new model.
> >     >
> >     >                             I was told to leave before I got to
> hear
> >     >                             the end of that story. Or about
> >     >                             the model itself.  Anyone who has had a
> >     >                             chance to listen, whatever happened?
> >     >
> >     >                             avri
> >     >
> >     >                             ps. sometimes i think the lawyers are
> >     >                             getting interested in what we are
> >     >                             doing, almost like stakeholders. not
> >     that
> >     >                             i expect them to give up their
> >     >                             hourly rates because they are
> >     stakeholders.
> >     >
> >     >                             On 06-Jul-15 05:07, James Gannon wrote:
> >     >
> >     >
> >     >                                 I listened to the last co-chairs
> >     >                                 lawyers’ call at;
> >     >
> >      https://community.icann.org/pages/viewpage.action?pageId=53782602
> >     >
> >      <
> https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=
> >
> >     >                                 (I’m a glutton for punishment)
> >     >
> >     >
> >     >
> >     >                                 It was a short call and I’ll make a
> >     >                                 particular note that Leon and
> >     >                                 Mathieu made a point of not
> >     making any
> >     >                                 decisions on behalf of the
> >     >                                 whole group and made it clear
> >     anything
> >     >                                 requiring a decision must be
> >     >                                 made by the overall CCWG, so I was
> >     >                                 happy with that side of things
> >     >                                 myself, most of my own fears
> >     about not
> >     >                                 having a sub-group are somewhat
> >     >                                 assuaged.
> >     >
> >     >                                 So my paraphrasing and overview is:
> >     >
> >     >
> >     >
> >     >                                 ·         Lawyers working hard
> >     on the
> >     >                                 models for us collaboratively
> >     >                                 between the two firms since BA
> >     >
> >     >                                 ·         Lawyers are prepping a
> >     >                                 presentation to give to us ASAP
> >     >                                 before Paris if possible, that
> >     >                                 presentation will take the
> >     majority of
> >     >                                 a call, it can’t be done
> >     quickly, they
> >     >                                 need about 45mins uninterrupted
> >     >                                 to go through the presentation and
> >     >                                 then would likely need Q&A time
> >     >                                 after they present.
> >     >
> >     >                                 ·         Some small
> >     >                                 wording/clarifications to come
> >     back to
> >     >                                 the CCWG
> >     >                                 to make sure everyone’s on the
> >     same page
> >     >
> >     >                                 ·         Everyone feels Paris
> >     will be
> >     >                                 an important time for the
> >     >                                 models, lawyers will be ready for a
> >     >                                 grilling on the details of the
> >     >                                 models from us to flesh out any
> >     of our
> >     >                                 concerns/questions
> >     >
> >     >
> >     >
> >     >                                 Note that the above is all my very
> >     >                                 condensed overview of the
> >     >                                 conversations.
> >     >
> >     >                                 It seemed like a productive call
> >     to me.
> >     >
> >     >
> >     >
> >     >                                 -James
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >
> >      *From:*accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>
> >     >
> >      <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>
> >     >
> >      [mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>
> >     >
> >      <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>]
> >     >                                 *On Behalf
> >     >                                 Of *Greg Shatan
> >     >                                 *Sent:* Monday, July 06, 2015
> >     5:33 AM
> >     >                                 *To:* Carlos Raul
> >     >                                 *Cc:*
> >     >
> >      accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>
> >     >
> >      <mailto:accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>>
> >     >                                 *Subject:* Re: [CCWG-ACCT] Who is
> >     >                                 managing the lawyers and what have
> >     >                                 they beenasked to do?
> >     >
> >     >
> >     >
> >     >                                 Carlos,
> >     >
> >     >
> >     >
> >     >                                 As the legal sub-team was
> disbanded,
> >     >                                 your guess is as good as mine.....
> >     >
> >     >
> >     >
> >     >                                 Greg
> >     >
> >     >
> >     >
> >     >                                 On Mon, Jul 6, 2015 at 12:27 AM,
> >     >                                 Carlos Raul
> >     <carlosraulg at gmail.com <mailto:carlosraulg at gmail.com>
> >     >                                 <mailto:carlosraulg at gmail.com
> >     <mailto:carlosraulg at gmail.com>>
> >     >                                 <mailto:carlosraulg at gmail.com
> >     <mailto:carlosraulg at gmail.com>>> wrote:
> >     >
> >     >                                    Thank you Greg!
> >     >
> >     >
> >     >
> >     >                                    It makes a lot of sense and I
> >     guess
> >     >                                 those are all good reasons as
> >     >                                    we hired them in the first
> place.
> >     >                                 What are the next steps now?
> >     >                                    What happened in the recent
> call?
> >     >
> >     >
> >     >
> >     >                                    Best regards
> >     >
> >     >
> >     >
> >     >
> >     >                                    Carlos Raúl Gutiérrez
> >     >
> >     >                                    +506 8837 7176
> >     <tel:%2B506%208837%207176>
> >     >                                 <tel:%2B506%208837%207176>
> >     >                                 <tel:%2B506%208837%207176>
> >     >
> >     >                                    Skype carlos.raulg
> >     >
> >     >                                    _________
> >     >
> >     >                                    Apartado 1571-1000
> >     >
> >     >                                    *COSTA RICA*
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >                                    On Mon, Jul 6, 2015 at 12:02 AM,
> >     >                                 Greg Shatan
> >     >                                    <gregshatanipc at gmail.com
> >     <mailto:gregshatanipc at gmail.com>
> >     >                                 <mailto:gregshatanipc at gmail.com
> >     <mailto:gregshatanipc at gmail.com>> <mailto:gregshatanipc at gmail.com
> >     <mailto:gregshatanipc at gmail.com>>>
> >     >                                 wrote:
> >     >
> >     >                                        Chris,
> >     >
> >     >
> >     >
> >     >                                        That was tried to some
> >     extent,
> >     >                                 at least in the CWG.
> >     >
> >     >
> >     >
> >     >                                        There are several
> substantial
> >     >                                 problems with that approach.
> >     >
> >     >
> >     >
> >     >                                        First, lawyers are not
> >     >                                 fungible.  The particular legal
> >     skills,
> >     >                                        background and experience
> >     >                                 required for the issues before both
> >     >                                        WGs are fairly specific,
> >     and in
> >     >                                 some cases, very specific.
> >     >                                        The primary core competency
> >     >                                 needed here is corporate
> >     >                                        governance.  While a
> >     number of
> >     >                                 lawyers in the community have a
> >     >                                        reasonable working
> >     knowledge of
> >     >                                 the area, at least in their
> >     >                                        home jurisdictions, I don't
> >     >                                 believe there are any who would
> >     >                                        say that this is their
> >     primary
> >     >                                 focus and expertise -- at least
> >     >                                        none who identified
> >     themselves
> >     >                                 to either WG.  The second core
> >     >                                        competency required,
> >     especially
> >     >                                 in the CCWG, is non-profit
> >     >                                        law. Again there are a
> number
> >     >                                 of lawyers with a decent working
> >     >                                        knowledge of this fairly
> >     broad
> >     >                                 field, but not as a primary
> >     >                                        focus.  There may be a
> couple
> >     >                                 of lawyers in the community who
> >     >                                        would claim this fairly
> broad
> >     >                                 field as a primary focus and
> >     >                                        expertise -- but none who
> >     >                                 became involved with either WG.
> >     >                                        This then becomes further
> >     >                                 narrowed by jurisdiction.  Since
> >     >                                        ICANN is a California
> >     >                                 non-profit corporation, US
> corporate
> >     >                                        governance and non-profit
> >     >                                 experience is more relevant than
> >     >                                        experience from other
> >     >                                 jurisdictions, and California law
> >     >                                        corporate governance and
> >     >                                 non-profit experience is more
> >     >                                        relevant than that from
> other
> >     >                                 US jurisdictions.  In my
> >     >                                        experience, the more a US
> >     >                                 lawyer focuses on a particular
> >     >                                        substantive area, the
> greater
> >     >                                 their knowledge of and comfort
> >     >                                        with state law issues in US
> >     >                                 state jurisdictions other than
> >     >                                        their own (e.g., someone who
> >     >                                 spend a majority of their time
> >     >                                        working in corporate
> >     governance
> >     >                                 will have a greater knowledge
> >     >                                        of the law, issues,
> >     approaches
> >     >                                 and trends outside their
> >     >                                        primary state of practice,
> >     >                                 while someone who spends a
> >     >                                        relatively small amount
> >     of time
> >     >                                 in the area will tend to feel
> >     >                                        less comfortable outside
> >     their
> >     >                                 home jurisdiction).  (An
> >     >                                        exception is that many US
> >     >                                 lawyers have specific knowledge of
> >     >                                        certain Delaware
> >     corporate law
> >     >                                 issues, because Delaware often
> >     >                                        serves as the state of
> >     >                                 incorporation for entities
> operating
> >     >                                        elsewhere.)
> >     >
> >     >
> >     >
> >     >                                        Second, lawyers in the
> >     >                                 community will seldom be seen as
> >     >                                        neutral advisors, no
> >     matter how
> >     >                                 hard they try.  They will tend
> >     >                                        to be seen as working from
> >     >                                 their point of view or stakeholder
> >     >                                        group or "special
> >     interest" or
> >     >                                 desired outcome, even if they
> >     >                                        are trying to be
> even-handed.
> >     >                                 Over the course of time, this
> >     >                                        balancing act would tend to
> >     >                                 become more untenable.
> >     >
> >     >
> >     >
> >     >                                        Third, the amount of time it
> >     >                                 would take to provide truly
> >     >                                        definitive legal advice
> >     >                                 (research, careful drafting,
> >     >                                        discussions with relevant
> >     >                                 "clients", etc.) would be
> >     >                                        prohibitive, even compared
> to
> >     >                                 the substantial amount of time
> >     >                                        it takes to provide
> >     reasonably
> >     >                                 well-informed and competent
> >     >                                        legal-based viewpoints in
> the
> >     >                                 course of either WG's work.
> >     >
> >     >
> >     >
> >     >                                        Fourth, in order to formally
> >     >                                 counsel the community, the lawyer
> >     >                                        or lawyers in question would
> >     >                                 have to enter into a formal
> >     >                                        attorney-client
> relationship.
> >     >                                 Under US law, an
> >     >                                        attorney-client relationship
> >     >                                 may inadvertently be created by
> >     >                                        the attorney's actions, so
> >     >                                 attorneys try to be careful about
> >     >                                        not providing formal legal
> >     >                                 advice without a formal engagement
> >     >                                        (sometimes providing an
> >     >                                 explicit "caveat" if they feel they
> >     >                                        might be getting too close
> to
> >     >                                 providing legal advice).  If the
> >     >                                        attorney is employed by a
> >     >                                 corporation, they would likely be
> >     >                                        unable to take on such a
> >     >                                 representation due to the terms of
> >     >                                        their employment, and that
> is
> >     >                                 before getting to an exploration
> >     >                                        of conflict of interest
> >     >                                 issues.  If the attorney is
> employed
> >     >                                        by a firm, the firm would
> >     have
> >     >                                 to sign off on the
> >     >                                        representation, again
> dealing
> >     >                                 with potential conflict issues.
> >     >
> >     >
> >     >
> >     >                                        Fifth, even if the above
> >     issues
> >     >                                 were all somehow resolved, it
> >     >                                        would be highly unlikely
> that
> >     >                                 any such attorney would provide
> >     >                                        substantial amounts of
> >     advice,
> >     >                                 written memos, counseling, etc.
> >     >                                        on a pro bono (unpaid)
> basis,
> >     >                                 especially given the
> >     >                                        time-consuming nature of the
> >     >                                 work.  Pro bono advice and
> >     >                                        representation is generally
> >     >                                 accorded to individuals and
> >     >                                        entities that could not
> >     >                                 otherwise be able to pay for
> >     it.  That
> >     >                                        is clearly not the case
> here,
> >     >                                 at least with ICANN taking
> >     >                                        financial responsibility.
> It
> >     >                                 would likely be very difficult
> >     >                                        to justify this to, e.g., a
> >     >                                 firm's pro bono committee, as a
> >     >                                        valid pro bono
> >     representation.
> >     >
> >     >
> >     >
> >     >                                        Sixth, if ICANN were not
> >     taking
> >     >                                 the role they are taking, it
> >     >                                        would be extremely
> >     difficult to
> >     >                                 identify the "client" in this
> >     >                                        situation.  The
> >     "community"  is
> >     >                                 a collection of sectors,
> >     >                                        mostly represented by
> various
> >     >                                 ICANN-created structures, which
> >     >                                        in turn have members of
> >     widely
> >     >                                 varying types (individuals,
> >     >                                        corporations, sovereigns,
> >     >                                 non-profits, IGOs, partnerships,
> >     >                                        etc.).  This would also
> >     make it
> >     >                                 extremely difficult to enter
> >     >                                        into a formal counseling
> >     >                                 relationship with the "community."
> >     >
> >     >
> >     >
> >     >                                        Seventh, this is a
> sensitive,
> >     >                                 high-profile, transformative set
> >     >                                        of actions we are
> >     involved in,
> >     >                                 which is subject to an
> >     >                                        extraordinary amount of
> >     >                                 scrutiny, not least that of the
> NTIA
> >     >                                        and the US Congress.  That
> >     >                                 eliminates any possibility of
> >     >                                        providing informal,
> >     >                                 off-the-cuff, reasonably
> >     well-informed but
> >     >                                        not quite expert,
> >     "non-advice"
> >     >                                 advice -- which might happen in
> >     >                                        a more obscure exercise.
> >     >                                 There's simply too much at stake.
> >     >
> >     >
> >     >
> >     >                                        Finally, I would say that a
> >     >                                 number of attorneys involved in
> >     >                                        one or both of the WGs are
> in
> >     >                                 fact providing a significant
> >     >                                        amount of legal knowledge
> and
> >     >                                 experience to the WGs, helping
> >     >                                        to frame issues, whether in
> >     >                                 terms of general leadership (e.g.,
> >     >                                        Thomas, Leon, Becky) or more
> >     >                                 specifically in a
> >     >                                        "lawyer-as-client"
> >     capacity --
> >     >                                 working with outside counsel,
> >     >                                        tackling the more legalistic
> >     >                                 issues, providing as much legal
> >     >                                        background and knowledge as
> >     >                                 possible without providing the
> >     >                                        type of formal legal advice
> >     >                                 that would tend to create an
> >     >                                        attorney-client
> relationship,
> >     >                                 etc.  So I do think that many
> >     >                                        lawyers in the community are
> >     >                                 giving greatly of themselves in
> >     >                                        this process, even though
> >     they
> >     >                                 cannot and would not be able to
> >     >                                        formally be engaged by the
> >     >                                 community as its "counsel of
> >     record."
> >     >
> >     >
> >     >
> >     >                                        In sum, it might be a nice
> >     >                                 thought in theory, but it is no way
> >     >                                        a practical possibility.
> >     >
> >     >
> >     >
> >     >                                        Greg
> >     >
> >     >
> >     >
> >     >                                        On Sat, Jul 4, 2015 at
> >     3:08 AM,
> >     >                                 CW Lists
> >     >
> >     <lists at christopherwilkinson.eu <mailto:lists at christopherwilkinson.eu
> >
> >     >
> >      <mailto:lists at christopherwilkinson.eu
> >     <mailto:lists at christopherwilkinson.eu>>
> >     >
> >     <mailto:lists at christopherwilkinson.eu
> >     <mailto:lists at christopherwilkinson.eu>>>
> >     >                                 wrote:
> >     >
> >     >                                            Good morning:
> >     >
> >     >
> >     >
> >     >                                            I had decided not to
> >     enter
> >     >                                 this debate. But I am bound to
> >     >                                            say that the thought had
> >     >                                 occurred to me at the time, that
> >     >                                            there were more than
> >     enough
> >     >                                 qualified lawyers in this
> >     >                                            community that they
> could
> >     >                                 perfectly well have counselled …
> >     >                                            themselves.
> >     >
> >     >
> >     >
> >     >                                            CW
> >     >
> >     >
> >     >
> >     >                                            On 04 Jul 2015, at
> 08:41,
> >     >                                 Greg Shatan
> >     >
> >     <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
> >     >                                 <mailto:gregshatanipc at gmail.com
> >     <mailto:gregshatanipc at gmail.com>> <mailto:gregshatanipc at gmail.com
> >     <mailto:gregshatanipc at gmail.com>>>
> >     >                                            wrote:
> >     >
> >     >
> >     >
> >     >                                                Wolfgang,
> >     >
> >     >
> >     >
> >     >                                                To your first point,
> >     >                                 the billing rates were clearly
> >     >                                                stated in the law
> >     >                                 firms' engagement letters.
> >     >
> >     >
> >     >
> >     >                                                To your second
> point,
> >     >                                 I'm sure we could all think of
> >     >                                                other projects and
> >     >                                 goals where the money could have
> >     >                                                been "better spent."
> >     >                                  You've stated yours.  But that
> >     >                                                is not the proper
> >     >                                 test.  This was and continues to be
> >     >                                                money we need to
> >     spend
> >     >                                 to achieve the goals we have
> >     >                                                set.  Under
> different
> >     >                                 circumstances, perhaps it would
> >     >                                                be a different
> amount
> >     >                                 (or maybe none at all).  But it
> >     >                                                was strongly felt at
> >     >                                 the outset that the group needed
> >     >                                                to have independent
> >     >                                 counsel.  Clearly that counsel
> >     >                                                needed to have
> >     >                                 recognized expertise in the
> >     appropriate
> >     >                                                legal areas.  As
> >     such,
> >     >                                 I believe we made excellent
> >     >                                                choices and have
> been
> >     >                                 very well represented.
> >     >
> >     >
> >     >
> >     >                                                As to your "better
> >     >                                 spent" test, I just had to have
> >     >                                                $4000.00 worth of
> >     >                                 emergency dental work done.  This
> >     >                                                money definitely
> >     could
> >     >                                 have been "better spent" on a
> >     >                                                nice vacation,
> >     >                                 redecorating our living room or on
> >     >                                                donations to my
> >     favored
> >     >                                 charitable causes.  But I had
> >     >                                                no choice, other
> than
> >     >                                 to choose which dentist and
> >     >                                                endodontist I
> >     went to,
> >     >                                 and I wasn't going to cut
> >     >                                                corners -- the
> dental
> >     >                                 work was a necessity.
> >     >                                                Similarly, the legal
> >     >                                 work we are getting is a
> >     >                                                necessity and
> whether
> >     >                                 we would have preferred to spend
> >     >                                                the money
> >     elsewhere is
> >     >                                 not merely irrelevant, it is an
> >     >                                                incorrect and
> >     >                                 inappropriate proposition.  Many
> >     of us
> >     >                                                are investing vast
> >     >                                 quantities of time that could be
> >     >                                                "better spent"
> >     >                                 elsewhere as well, but we are
> >     willing
> >     >                                                (grudgingly
> >     sometimes)
> >     >                                 to spend the time it takes to
> >     >                                                get it right,
> because
> >     >                                 we believe it needs to be done.
> >     >                                                This is the
> >     appropriate
> >     >                                 measure, whether it comes to
> >     >                                                our time or
> counsels'
> >     >                                 time.  If we believe in this
> >     >                                                project, we have to
> >     >                                 invest in it, and do what it takes
> >     >                                                to succeed.
> >     >
> >     >
> >     >
> >     >                                                Of course, this
> >     >                                 investment has to be managed wisely
> >     >                                                and
> cost-effectively,
> >     >                                 and by and large, I believe the
> >     >                                                CCWG has done that
> >     >                                 reasonably well -- not perfectly,
> >     >                                                but reasonably
> >     well and
> >     >                                 with "course corrections"
> >     >                                                along the way
> >     intended
> >     >                                 to improve that management.
> >     >                                                It's certainly
> >     fair to
> >     >                                 ask, as Robin has done, for a
> >     >                                                better
> >     understanding of
> >     >                                 that management as we go
> >     >                                                along.  But
> asserting
> >     >                                 that the money could have been
> >     >                                                "better spent"
> >     >                                 elsewhere sets up a false test
> >     that we
> >     >                                                should not use to
> >     >                                 evaluate this important aspect of
> >     >                                                our work.
> >     Instead, we
> >     >                                 need to focus on whether the
> >     >                                                money was "well
> >     spent"
> >     >                                 on these critical legal
> >     >                                                services. If you
> have
> >     >                                 reason to believe it was not,
> >     >                                                that could be
> >     useful to
> >     >                                 know.  That would at least be
> >     >                                                the right
> >     discussion to
> >     >                                 have.
> >     >
> >     >
> >     >
> >     >                                                Greg
> >     >
> >     >
> >     >
> >     >                                                On Sat, Jul 4,
> >     2015 at
> >     >                                 1:13 AM, "Kleinwächter,
> >     >                                                Wolfgang"
> >     >
> >     <wolfgang.kleinwaechter at medienkomm.uni-halle.de
> >     <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>
> >     >
> >      <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de
> >     <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>>
> >     >
> >     <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de
> >     <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>>>
> >     >                                                wrote:
> >     >
> >     >                                                    HI,
> >     >
> >     >                                                    and please if
> you
> >     >                                 ask outside lawyers, ask for the
> >     >                                                    price tag in
> >     >                                 advance. Some of the money spend fo
> >     >                                                    lawyers could
> >     have
> >     >                                 been spend better to suppport
> >     >                                                    and enable
> >     Internet
> >     >                                 user and non-commercial groups
> >     >                                                    in developing
> >     >                                 countries.
> >     >
> >     >
> >     >                                                    Wolfgang
> >     >
> >     >
> >     >
> >     >
> >     >
> >     >
> >     -----Ursprüngliche
> >     >                                 Nachricht-----
> >     >                                                    Von:
> >     >
> >     accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>
> >     >
> >      <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>
> >     >
> >     <mailto:accountability-cross-community-bounces at icann.org
> >     <mailto:accountability-cross-community-bounces at icann.org>>
> >     >                                                    im Auftrag von
> >     >                                 Robin Gross
> >     >                                                    Gesendet: Fr
> >     >                                 03.07.2015 14:57
> >     >                                                    An:
> >     accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>
> >     >
> >      <mailto:accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>>
> >     >
> >     <mailto:accountability-cross-community at icann.org
> >     <mailto:accountability-cross-community at icann.org>>
> >     >                                                    Community
> >     >                                                    Betreff:
> >     >                                 [CCWG-ACCT] Who is managing the
> >     lawyers
> >     >                                                    and what have
> >     they
> >     >                                 beenasked to do?
> >     >
> >     >
> >     >                                                    After the legal
> >     >                                 sub-team was disbanded, I haven't
> >     >                                                    been able to
> >     follow
> >     >                                 what communications are
> >     >                                                    happening
> >     with CCWG
> >     >                                 and the independent lawyers we
> >     >                                                    retained.
> >     >
> >     >                                                    I understand the
> >     >                                 lawyers are currently "working on
> >     >                                                    the various
> >     models"
> >     >                                 and will present something to
> >     >                                                    us regarding
> that
> >     >                                 work soon.  However, *what
> >     >                                                    exactly* have
> the
> >     >                                 lawyers been asked to do and
> >     >                                                    *who* asked
> them?
> >     >                                   If there are written
> >     >                                                    instructions,
> may
> >     >                                 the group please see them?  Who
> >     >                                                    is now taking on
> >     >                                 the role of managing the outside
> >     >                                                    attorneys for
> >     this
> >     >                                 group, including providing
> >     >                                                    instructions and
> >     >                                 certifying legal work?
> >     >
> >     >                                                    Sorry, but I'm
> >     >                                 really trying to understand what is
> >     >                                                    happening, and
> >     >                                 there doesn't seem to be much
> >     >                                                    information
> >     in the
> >     >                                 public on this (or if there is,
> >     >                                                    I can't find
> it).
> >     >                                 Thanks for any information
> >     >                                                    anyone can
> >     provide.
> >     >
> >     >                                                    Best,
> >     >                                                    Robin
> >     >
> >     >
> >     _______________________________________________
> >     >
> >     Accountability-Cross-Community
> >     >                                 mailing list
> >     >
> >     Accountability-Cross-Community at icann.org
> >     <mailto:Accountability-Cross-Community at icann.org>
> >     >
> >      <mailto:Accountability-Cross-Community at icann.org
> >     <mailto:Accountability-Cross-Community at icann.org>>
> >     >
> >     <mailto:Accountability-Cross-Community at icann.org
> >     <mailto:Accountability-Cross-Community at icann.org>>
> >     >
> >     https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >     >
> >      <
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> >     >
> >     >         --
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> >
> ------------------------------------------------------------------------
> >     >
> >     >             /Seun Ojedeji,
> >     >             Federal University Oye-Ekiti
> >     >             web:      //http://www.fuoye.edu.ng
> >     >
> >      <
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> >     >             //Mobile: +2348035233535 <tel:%2B2348035233535>//
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> >     >
> >     >                 The key to understanding is humility - my view !
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