[CCWG-ACCT] Updated Memo on Request on Sole Designator

[Jordan Carter]

Thanks Greg.

I've decided as WP1 rapporteur to start a piece of work to see if we can
solve this. More details in around 48h.


Jordan

On Saturday, 14 November 2015, Greg Shatan <gregshatanipc at gmail.com> wrote:

> A very quick response:
>
> 1.  I only used the ccNSO in the example because Chris Disspain did.
> Clearly, that exposed this issue right over a major fault line. I don't
> know if that was Chris's intent, or if he was just speaking from his cc
> point of view, but no matter -- the elephant is where it is. As Becky
> indicates, GNSO would have similar concerns (though without quite the same
> ability to walk away from ICANN).  One could imagine similar concerns from
> at least some of the other SO/ACs as well (though without the same history,
> which can't be ignored).
>
> 2.  The completion deadline isn't *really* 48 hours from now.  That's only
> when the Formal Update (downgraded from an Executive Summary, and perhaps
> to be further downgraded to a Strong Breeze, or a Foul Wind) is being
> published.  The *real* proposal won't be published until November 30 (known
> to those in the US as "the Monday after Thanksgiving").
>
> 3.  This does expose issues, as you say:
>
>    - Should all Bylaw changes coming from any SO/AC be immune from
>    challenge by the Community?
>    - Or should this immunity be granted only to the ccNSO, given the
>    Great Schism of 2002 and the subsequent Great Re-Engagement of 2003, which
>    was predicated on specific understandings?
>    - How far would this immunity go?
>       - If such Bylaws were immune from veto, would a "spill the board"
>       or "IRP" action by the remaining Community members also be prohibited?
>    - How far does this "One Big Community" idea go?
>       - Does it go so far to say that each part of the Community must be
>       subservient to the Community as a whole? (Which sounds like another word
>       that begins with "Commun-" (not that there's anything wrong with that))
>       - If not, how do you balance autonomy and Community?
>       - And to what extent should these be general rules vs. specific
>       rules (or exceptions to the general rules)?
>    - Can there be a narrowly tailored solution to this particular issue,
>    so that we are dealing with an animal smaller than an elephant, and a
>    problem smaller than the essential underpinnings of "Community Powers"?
>    - Do the various escalation steps (especially the conference call and
>    the Community Forum) provide enough of an opportunity for an embattled
>    SO/AC to try to stop this from happening, rather than changing the rules at
>    all?
>
> Greg
>
> On Fri, Nov 13, 2015 at 12:39 PM, Roelof Meijer <Roelof.Meijer at sidn.nl
> <javascript:_e(%7B%7D,'cvml','Roelof.Meijer at sidn.nl');>> wrote:
>
>> Chris, all,
>>
>> I am with Jordan on this.
>>
>> In the present situation, the board can reject the outcome of such a GNSO
>> or ccNSO process with a 2/3 majority vote, right? Again in the present
>> situation (and if all is well), the board would do so on the basis of
>> comments from the community on the GNSO or ccNSO proposal. So, the
>> community would kind of have the final say. Which is what we want, although
>> it might sometimes be disappointing to a particular constituency.
>>
>> In the post-transition situation, with the new community powers in place,
>> we want the community to be able to correct the board on important
>> decisions that the large majority of the community does not agree with.
>> Many of these important decisions will either be the outcome of a policy
>> process of an SO or advice from an AC (think about the GAC and stress test
>> 18 in this context). Some of those will require a bylaw change, quite a few
>> not, I suspect.
>> Furthermore, those “important decisions” will in most cases (bylaw change
>> or not) have an impact on a wider group than the SO or AC members that
>> propose it.
>>
>> So I think it’s completely justified that the community can eventually
>> block an SO policy or AC advice (again, requiring a bylaw change or not)
>> WITHOUT the consent of the “issuing” SO or AC. In fact, I think this this
>> is one of the important pillars of the multi-stakeholder model.
>>
>>
>> Best,
>>
>> Roelof Meijer
>>
>> From: <accountability-cross-community-bounces at icann.org
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community-bounces at icann.org');>>
>> on behalf of Chris Disspain <ceo at auda.org.au
>> <javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>>
>> Date: donderdag 12 november 2015 10:50
>> To: Greg Shatan <gregshatanipc at gmail.com
>> <javascript:_e(%7B%7D,'cvml','gregshatanipc at gmail.com');>>
>> Cc: Jon Nevett <jon at donuts.email
>> <javascript:_e(%7B%7D,'cvml','jon at donuts.email');>>, Accountability
>> Cross Community <accountability-cross-community at icann.org
>> <javascript:_e(%7B%7D,'cvml','accountability-cross-community at icann.org');>
>> >
>> Subject: Re: [CCWG-ACCT] [WP1] Fwd: Updated Memo on Request on Sole
>> Designator
>>
>> 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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>>>
>>> T: +61 3 8341 4111 | F: +61 3 8341 4112
>>>
>>> E: ceo at auda.org.au | W:www.auda.org.au
>>>
>>> auDA – Australia’s Domain Name Administrator
>>>
>>>
>>> *Important Notice**- *This email may contain information which is
>>> confidential and/or subject to legal privilege, and is intended for the use
>>> of the named addressee only. If you are not the intended recipient, you
>>> must not use, disclose or copy any part of this email. If you have received
>>> this email by mistake, please notify the sender and delete this message
>>> immediately. Please consider the environment before printing this email.
>>>
>>> On 12 Nov 2015, at 20:46 , Steve DelBianco <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> on behalf of Robin Gross <
>>> robin at ipjustice.org>
>>> Date: Wednesday, November 11, 2015 at 10:24 PM
>>> To: Accountability Cross Community <
>>> accountability-cross-community at icann.org>
>>> Cc: "James M. Bladel" <jbladel at godaddy.com>, "wp1 at icann.org" <
>>> wp1 at icann.org>, Jon Nevett <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> on behalf of
>>> Jon Nevett <jon at donuts.email>
>>> Date: Tuesday, November 10, 2015 at 20:51
>>> To: Accountability Cross Community <
>>> accountability-cross-community at icann.org>
>>> Cc: "<wp1 at icann.org>" <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>
>>> 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
>>> heritage.org
>>>
>>> *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>; 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 > 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>
>>> 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
>>> *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> 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] *On
>>> Behalf Of *Jordan Carter
>>> *Sent:* Sunday, November 08, 2015 5:51 PM
>>> *To:* Accountability Cross Community; 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 >
>>> 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
>>> heritage.org
>>>
>>> *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
>>> heritage.org
>>> ---------- Forwarded message ----------
>>> From: *Gregory, Holly* <holly.gregory at sidley.com >
>>> 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 *
>>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
>>> Email: jordan at internetnz.net.nz
>>> Skype: jordancarter
>>> Web: www.internetnz.nz
>>>
>>>
>>> *A better world through a better Internet *
>>>
>>>
>>>
>>> --
>>> Jordan Carter
>>>
>>> Chief Executive
>>>
>>> *InternetNZ *
>>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
>>> Email: jordan at internetnz.net.nz
>>> Skype: jordancarter
>>> Web: www.internetnz.nz
>>>
>>>
>>> *A better world through a better Internet *
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>> ------------------------------
>>>
>>>
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> _______________________________________________
>>> WP1 mailing list
>>> WP1 at icann.org
>>> https://mm.icann.org/mailman/listinfo/wp1
>>>
>>>
>>>
>>
>

-- 
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151114/3ffa1d73/attachment-0001.html>