[CCWG-ACCT] [WP1] Fwd: Updated Memo on Request on Sole Designator

Burr, Becky Becky.Burr at neustar.biz
Fri Nov 13 17:33:36 UTC 2015


I think this is an important and difficult issue.  On the one hand, I feel pretty strongly, that the gNSO should develop policy for the g’s and the ccNSO should develop policy for the c’s, that line should be guarded, and that generally properly adopted policies within ICANN’s mission should be adopted by the Board.  But you can imagine extreme cases.  For example, what about a ccNSO PDP that declared that all geo names are ccTLDs?  I think this would require a change to the ccNSO provisions of the Bylaws.  I would think that the gNSO would legitimately have something to say about that.  I guess we could rely on the Board to reject such a policy, but it seems like we ought to at least acknowledge that our worlds are connected and interdependent at some level.


J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz>

From: "SDeerhake at nic.as<mailto:SDeerhake at nic.as>" <SDeerhake at nic.as<mailto:SDeerhake at nic.as>>
Organization: AS Domain Registry
Reply-To: "SDeerhake at nic.as<mailto:SDeerhake at nic.as>" <SDeerhake at nic.as<mailto:SDeerhake at nic.as>>
Date: Friday, November 13, 2015 at 9:22 AM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>>
Cc: Jon Nevett <jon at donuts.email<mailto:jon at donuts.email>>, Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] [WP1] Fwd: Updated Memo on Request on Sole Designator

Greg,

Since you have acknowledged the elephant in the room with regards to the ccTLDs and the work of the CCWG, I'll address my remarks to you, but bear in mind they apply to the entire WG and the collective work product to date.

Recall that ccTLDs walked away from ICANN at the conclusion of the Shanghai meeting (ICANN 14) in October 2002, and only returned in a formal capacity when the ccNSO was formed at the Montreal meeting (ICANN 17) in June 2003.  The decision to withdraw from formal participation in ICANN was made by a group that consisted of 65 ccTLD Managers, so in no way can it be construed as being a decision of some dissident "fringe" group.

Between the withdrawal from ICANN and the decision to formally re-engage with ICANN, a tremendous amount of informal engagement occurred between the ccTLD Community and ICANN over a number of contentious issues, not the least of which was the ICANN Staff imposed demand that ccTLDs grant access to their zone files to ICANN in return for critically needed root zone changes.  This action on the part of ICANN was nothing short of extortion.  It both endangered the stability of the DNS and caused a tremendous amount of distrust of ICANN within the ccTLD Community.  To an extent, that distrust persists to this day, as you have seen from some of the postings to this list.

At the end of the day what the ccTLD community gained was an SO that imposed light-weight membership requirements on the Community.  Formal membership is not required for a ccTLD to participate in the deliberations of the ccNSO.  Membership is a two-way street --there is no restriction on a ccNSO member leaving the Organization, if it should, for whatever reason, decide that it is in its best interest to do so.

Most importantly, the ccNSO was structured so that it could with assurance propose ccTLD related policy development (with input from other SOs/ACs during the process), with a reasonable expectation that the policy put forth to the Board would in fact be adopted by the Board, along with any necessary Bylaw changes required to implement the policy.  Under the current structure, there is no way another SO/AC (either acting alone or together) can block a Bylaw change based on an adopted PDP.

This provision was and remains the major foundation of the relationship between ccTLDs and ICANN as embodied within the structure of the ccNSO.  The formation of the ccNSO, coming as it did on the heels of the Zone File fiasco described above, could not have occurred without the fundamental principle of the agreement being that the ccTLDs, and only the ccTLDs, would be responsible for ccTLD affairs.

What has been admitted to now, at the 11th hour of the CCWG's work, is that in fact this foundation underpinning the relationship between the ccTLD Community and ICANN is being cast aside as the CCWG races to complete its work in order to meet an arbitrary deadline set by who knows who.

This is not acceptable to me as a ccTLD Manager, nor, I believe, will it be acceptable to a great many of my Colleagues.  The ccTLD Community has walked away from ICANN before; it could well do so again.

At the end of the day, for the CCWG proposal to go forward, it is going to need the endorsement of the ccNSO Council.  Historically, the ccNSO Council has not acted in haste, nor does it have a track record of going on record without having first engaged in a serious consultative process with the ccTLD Community regarding the issue at hand.  It is unlikely that the Council will act unless it is comfortable that (a) the ccTLD Community has had ample opportunity to review the (as yet non-existent) 3rd (final?) draft proposal, and (b), the broader ccTLD Community (not just the Council, or, for that matter, the ccNSO membership) has come to a reasonable level of consensus around endorsement of the proposal.

The arbitrary “completion” deadline for the CCWG’s work is now less than 48 hours away.  As a result, I fear this issue raised by Chris, like so many others, is either going to be ignored, or swept under the rug by relegating its resolution to WS2.  I do not see why, under the guise of “increasing ICANN Board/Staff Accountability”, the ccTLD community should forfeit control of its destiny, which is what is being asked of it as this proposal currently stands.

This issue cannot be relegated to WS2; it has to be dealt with here and now.

Regards,

Stephen Deerhake (ccNSO Councilor)



From: 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: Thursday, November 12, 2015 2:32 PM
To: Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>>
Cc: Jon Nevett <jon at donuts.email<mailto:jon at donuts.email>>; Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] [WP1] Fwd: Updated Memo on Request on Sole Designator

Chris,

I'm not saying that the community should in my opinion have that power.  I'm saying that under the current formulation, the community will have that power.  Seun says he believes there is a limitation that prevents this from happening.  If someone could point to where that limitation is stated in our proposal I would be most grateful.

Greg

On Thu, Nov 12, 2015 at 8:50 AM, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
Thanks Greg.

For clarity then, you are saying that where a policy has been created by the GNSO through its legitimate PDP and that policy requires a bylaw change, the community should be able to block that bylaw change. Does that not undermine the whole policy development process and substantially change the role of the SOs within the ICANN structure?

Although I was not in the ccNSO room at the time of the discussion, I believe that this issue was a serious concern for the ccTLDs. Perhaps my ccTLD colleagues on the CCWG would care too confirm the position?



Cheers,



Chris



On 13 Nov 2015, at 00:17 , Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:

I think the corollary to Chris's questions is whether the ccNSO (in Chris's example) should be able to push through these changes despite opposition from the rest of the community.

I would say that we have answered this question "no" and Chris's questions "yes."  These have been fairly obvious implications of our work for quite some time.

On the other hand, if there is substantial opposition to this lack of autonomy (in favor of more power to the community as a whole), now that it's so explicitly stated, now's the time to say so!

Greg

On Thursday, November 12, 2015, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
All,

Jon’s point is, in effect, the same as has been raised in the ccNSO (by me and a number of others).

Using the ccNSO as an example there are 2 questions:

1. If the ccNSO goes through an internal or external review process and ends up approving changes to its operations that involve a change to the relevant bylaw then should that change be ‘blockable' without the ccNSO supporting such a block?

2. If the ccNSO has run a PDP and makes recommendations to the Board which are accepted and in the event that the recommendations require a bylaw change then should such change be ‘blockable’ without the ccNSO supporting such a block?

This applies to each SO (and for question 1 the ACs) including, importantly, the ASO which delivers global policy instructions on behalf on the NRO.

It is not an answer to these questions to say ‘it is highly unlikely that bylaw changes would be required because of a PDP or SO/AC review’. Unlikely scenario or not, these are fundamental questions that need to be answered.



Cheers,



Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

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On 12 Nov 2015, at 20:46 , Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>> wrote:

"consent of the governed"?  I do not think it means what you think it means.

A government serves with the consent of those it governs, measured by majority of all citizens.  A government that campaigned on raising taxes on the rich could prevail in an election WITHOUT requiring that the impacted rich give their support.

Even if it meant what Jon intends, “consent of the governed” for a budget veto would require consent of those who pay registration fees, not just the contract parties.   That would mean ALAC support would be required, too.


From:  <wp1-bounces at icann.org<mailto:wp1-bounces at icann.org>> on behalf of Robin Gross <robin at ipjustice.org<mailto:robin at ipjustice.org>>
Date: Wednesday, November 11, 2015 at 10:24 PM
To: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "James M. Bladel" <jbladel at godaddy.com<mailto:jbladel at godaddy.com>>, "wp1 at icann.org<mailto:wp1 at icann.org>" <wp1 at icann.org<mailto:wp1 at icann.org>>, Jon Nevett <jon at donuts.email<mailto:jon at donuts.email>>
Subject: Re: [WP1] [CCWG-ACCT] Updated Memo on Request on Sole Designator

Also agree with Jon on this key point, which has been raised before, but not dealt with due to more "pressing" issues.

Robin

On Nov 11, 2015, at 2:34 PM, James M. Bladel wrote:


Agree with Jon, “consent of the governed” is an necessary component of community decision making.

Thanks—

J.


From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Jon Nevett <jon at donuts.email<mailto:jon at donuts.email>>
Date: Tuesday, November 10, 2015 at 20:51
To: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "<wp1 at icann.org<mailto:wp1 at icann.org>>" <wp1 at icann.org<mailto:wp1 at icann.org>>
Subject: Re: [CCWG-ACCT] [WP1] Updated Memo on Request on Sole Designator

Folks:

I'd like to propose an amendment to the Community Decision-making Process.

In the case where an issue being considered most directly relates to a specific Supporting Organization, we should require support of that SO in order to utilize a community action. For example, if the community is considering blocking a change to a standard Bylaw -- Article IX of the ICANN Bylaws (CCNSO) -- we should ensure that the CCNSO supports using a community action in order to move forward.

In the case of blocking ICANN's budget, which includes the specific amount gTLD registration fees, the GNSO must support using that community process.

In the case of an ASO related IRP issue, the ASO must support before the community makes a decision binding.

We should require the specific SO at issue plus at least 50% of the other SOs and ACs participating in the decision in order for the community decision process is invoked.

To do otherwise, we risk tyranny of the majority being used against the group most impacted by a decision.

Of course, in the case where there is no SO that is predominantly at issue, we should go with a certain requirement of support that we already have been discussing.

We also would need to figure out how to handle a dispute of which SO is predominant.  Regardless of how we handle that issue, we should ensure that the SO most impacted by use of community powers are in support.

Thanks.

Jon


On Nov 10, 2015, at 9:44 AM, Alan Greenberg <alan.greenberg at mcgill.ca<mailto:alan.greenberg at mcgill.ca>> wrote:

No misunderstanding. I was replying to Seun who raised the case of some AC/SOs choosing not to participate in a particular issue.

Alan

At 10/11/2015 07:29 AM, Schaefer, Brett wrote:


Alan,

I think there is a bit of misunderstanding. I’m not talking about a participating SO or AC choosing to abstain or make no decision. That is anticipated in the model. Abstention, as far as I understand it, is not considered either opposition or support for the purposes of exercising the community powers – in other words iit does not count for the thresholds either in support or against.

I’m talking about situations like SSAC, where a AC decides not to participate at all. Most seem to believe that RSSAC will likewise decide not to participate.

But the assumption is that GNSO, ccNSO, ASO, ALAC, and GAC will. This is why everyone is assuming that we will have 5 participating entities in the community mechanism.

But if GAC or one of the others decides otherwise or simple cannot reach consensus on participating for some length of time, we would only have 4 or even fewer participating entities. In the first situation, using those four community powers would require community unanimity. In the second, the community would not be able to exercise those powers at all.

That is why I suggested getting confirmation of intent to participate – acknowledging that this would not be an endorsement of the CCWG proposal – from the ACss and SOs so that we can accurately project for the model.

I also think that we need to explore thresholds for various levels of participation for that reason.

Best,

Brett



________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097<tel:202-608-6097>
heritage.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=oqTaLud6jx_1RdP9JHlla3I7oHo8p53rm9FjAWzfllw&s=uh4bnRJ1FsLDhednLGvMrfBxxw6lgAfRysln9P_ZZ44&e=>

From: Alan Greenberg [ mailto:alan.greenberg at mcgill.ca]
Sent: Tuesday, November 10, 2015 5:51 AM
To: Seun Ojedeji; Schaefer, Brett
Cc: <wp1 at icann.org<mailto:wp1 at icann.org>>; Accountability Cross Community
Subject: Re: [CCWG-ACCT] [WP1] Updated Memo on Request on Sole Designator

There is a huge difference between an AC/SO that has explicitly said it will not participate at all and one that decides to not state a position on exercising a power in a particular instance. The latter IS participating by neither supporting nor opposing the action. Without sufficient ACTIVE support, the action dies.

In the extreme, option 2 will allow one AC/SO to exercise a power on its own, since 1 is greater than 75% of 1.

Alan
--
Sent from my mobile. Please excuse brevity and typos.
On November 10, 2015 1:54:23 AM GMT-03:00, Seun Ojedeji <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com%20> > wrote:

Hi,

I think lowering the threshold may still bring us to a deadlock since we are not always certain whether all will participate at any point in time. Allowing splitting votes is out of discussion as we have agreed to go by consensus.

Option 2 IMO seem to be a good thing to explore further and in order to ensure that is not abused, an overall minimum total number of participating SO/AC should be set. So if that minimum is not achieved then there is no need to check those in support or against. I think a minimum number of 4 may be in order.
That will ensure that percentage is not used on say 3 participating SO/AC or less.

Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 9 Nov 2015 22:57, "Schaefer, Brett" < Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>> wrote:
Jordan,

If the model that we are discussing is unworkable under a fairly realistic eventuality that seems to be a critical problem.

In my opinion, it requires consideration of: (1) lowering the thresholds to three if there are only four participating entities; (2) shifting minimum thresholds from 4 entities in support to, instead, at least 75 percent of the participating entities in support; or (3) allowing the splitting of votes to surmount existing thresholds.

Best,

Brett

From: Jordan Carter [ mailto:jordan at internetnz.net.nz]
Sent: Monday, November 09, 2015 4:46 PM
To: Schaefer, Brett
Cc: Accountability Cross Community; wp1 at icann.org<mailto:wp1 at icann.org>
Subject: Re: [WP1] Updated Memo on Request on Sole Designator

hi Brett,

Such matrices of decision are not being drafted. If you are able to attend the call in around ~15 hours, I think it would be useful to talk this through. As I've said before, if we are down to four SO/ACs participating, to my mind that's too small an orbit to use the current model.

Jordan

On 10 November 2015 at 08:34, Schaefer, Brett < Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>> wrote:
Jordan,

I appreciate the explanation provided in the memo.

However, I note that the decision matrix remains unchanged in that it requires support from 4 SOs/ACs to exercise powers 1, 2, 5, and 7. The operating assumption is that GNSO, ccNSO, ASO, and ALAC will participate. I believe that they will, but it would be good to get confirmation even with the knowledge that such a statement should not be considered an endorsement of the CCWG proposal.

Also, as we discussed in the previous CCWG WP1 call, there is a possible complication if RSSAC, as expected, decides not to participate and GAC either (1) decides not to participate, (2) decides not to participate immediately, but announces its desire to be allowed participate at some future date, or (3) cannot reach a consensus position.

In that case, unanimous support by the 4 SOs/ACs assumed above to participate would be required in order to exercise powers 1,2, 5, and 7. I don’t think that unanimous support was supposed to be required for exercise of the community powers.

Until we have confirmation of which SOs and ACs (other than SSAC which has explicitly stated its intention not to participate) will be participating in the mechanism, we need to plan out possible scenarios. For this reason, I think we need to provide decision matrices based on varying levels of participation.  Is this being drafted?

Thanks,

Brett

From: wp1-bounces at icann.org<mailto:wp1-bounces at icann.org> [ mailto:wp1-bounces at icann.org] On Behalf Of Jordan Carter
Sent: Sunday, November 08, 2015 5:51 PM
To: Accountability Cross Community; wp1 at icann.org<mailto:wp1 at icann.org>
Subject: Re: [WP1] Updated Memo on Request on Sole Designator

... and in PDF
J

On 9 November 2015 at 11:50, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz%20> > wrote:
Dear all - for your reading pleasure and for the lists record.

Jordan


Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097<tel:202-608-6097>
heritage.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=oqTaLud6jx_1RdP9JHlla3I7oHo8p53rm9FjAWzfllw&s=uh4bnRJ1FsLDhednLGvMrfBxxw6lgAfRysln9P_ZZ44&e=>

Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097<tel:202-608-6097>
heritage.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__heritage.org_&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=oqTaLud6jx_1RdP9JHlla3I7oHo8p53rm9FjAWzfllw&s=uh4bnRJ1FsLDhednLGvMrfBxxw6lgAfRysln9P_ZZ44&e=>
---------- Forwarded message ----------
From: Gregory, Holly <holly.gregory at sidley.com <mailto:holly.gregory at sidley.com%20> >
Date: 7 November 2015 at 13:48
Subject: Updated Memo on Request on Sole Designator
Dear Co-Chairs, Jordan and Staff,

Attached please find a substantially reorganized and revised memo on how  the Sole Designator would be made operational, to replace the memo that was sent to you last week.  The changes are largely in the nature of clarifications and we have addressed the point requested below as well.  We request that this memo be posted to replace the prior memo.

Please let us know if you have any questions.

Kind regards,
Holly and Rosemary





--
Jordan Carter

Chief Executive
InternetNZ

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A better world through a better Internet




--
Jordan Carter

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InternetNZ

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