[CCWG-ACCT] CCWG - Proposed Responses to questions onDraft Bylaws

Mon Apr 11 15:59:32 UTC 2016

Rafael,

Are you advancing an interpretation that only challenges to Board actions
solely based on "standalone" GAC advice are subject to the GAC Carveout?

Greg

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*Gregory S. Shatan | Partner*McCARTER & ENGLISH, LLP

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On Mon, Apr 11, 2016 at 5:23 AM, Perez Galindo, Rafael <RPEREZGA at minetur.es>
wrote:

> Dear all
>
>
>
> Actually, the proposed development of the carve-out in the draft Bylaws is
> so over-complicated that it may yield errors in the text. I stand to be
> corrected, but there seems to be a missing part in Annex D, section 2.4 (b)
> (ii) (A), namely “Rejection Action” should be added before “GAC Consensus
> Statement”. Please penholders can you kindly check this?
>
>
>
> We would need to strive to get a simpler text that reflects the final
> agreement in the CCWG, taking into account the premises outlined in the
> emails below, i.e., GAC advice is almost never a standalone seldom
> happening, but on the contrary is a frequent event, more and more rooted in
> community processes.
>
>
>
> Best
>
>
>
> Rafael
>
>
>
>
>
> *De:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *En nombre de *Julia
> Katja Wolman
> *Enviado el:* viernes, 08 de abril de 2016 14:54
> *Para:* 'Jorge.Cancio at bakom.admin.ch'; 'mark.carvell at culture.gov.uk'
> *CC:* 'CCWG Accountability'
> *Asunto:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions onDraft
> Bylaws
>
>
>
> Dear Jorge,
>
>
>
> In line with your comments, we believe it is important that we have
> clarity on the issues related to the GAC “carve-out”. The Bylaws text as a
> whole should reflect the CCWG Proposal and it is important to ensure that
> there is no direct/indirect extension of the “carve-out” provision in the
> relevant section of the CCWG Supplemental Report.
>
>
>
> A simple and clean Bylaws text as possible is important from our point of
> view and referring to the carve-out in different sections of the Bylaw text
> has certainly not made it less complicated.
>
>
>
> Best regards,
>
>
>
> Julia
>
>
>
>
>
>
> *Julia Katja Wolman*
>
> *DANISH BUSINESS AUTHORITY*
>
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> DK-2100 København Ø
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>
> MINISTRY FOR BUSINESS AND GROWTH
>
> P Please consider the environment before printing this email.
>
>
>
>
>
> *Fra:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *På vegne af *Mark
> Carvell
> *Sendt:* 8. april 2016 13:04
> *Til:* Kavouss Arasteh
> *Cc:* <accountability-cross-community at icann.org>
> *Emne:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on Draft
> Bylaws
>
>
>
> Dear Jorge
>
>
>
> I think this serves to underline that in the new era of transversal
> working with the GNSO in particular, the so-called "carve-out" from a
> community escalation decision in instances where the Board decision would
> be based solely on GAC advice, would be an extremely rare occurrence. Plus
> of course the GAC would be advising the community throughout such a
> decision stage: as has been made clear in the CCWG discussions several
> times, while not being able to exercise a vote due to the carve-out,
> governments would not be excluded from this process.
>
>
>
> Kind regards
>
>
>
> Mark
>
>
>
> Mark Carvell
>
> Global Internet Governance Policy
>
> Department for Culture, Media and Sport
>
> mark.carvell at culture.gov.uk
>
> tel +44 (0) 20 7211 6062
>
>
>
> On 8 April 2016 at 08:54, Kavouss Arasteh <kavouss.arasteh at gmail.com>
> wrote:
>
> Jorge+1
>
> Kavousd
>
> Sent from my iPhone
>
>
> On 8 Apr 2016, at 08:52, <Jorge.Cancio at bakom.admin.ch> <
> Jorge.Cancio at bakom.admin.ch> wrote:
>
> Dear all
>
>
>
> Just to reiterate what some of us said in the chat yesterday:
>
>
>
> -          GAC Advice is almost always linked to a community process, and
> the tendency (and wish) is to increase this
>
> -          GAC Advice is actually quite frequent (at least three times a
> year)
>
> -          There is no basis in the CCWG report for isolating GAC Advice
> from other inputs from the community, and it would be counter to the
> multistakeholder fashion we work and/or we are trying to work within ICANN
>
>
>
> Hope this helps
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *Im Auftrag von *Schaefer,
> Brett
> *Gesendet:* Donnerstag, 7. April 2016 16:31
> *An:* Andrew Sullivan <ajs at anvilwalrusden.com>;
> accountability-cross-community at icann.org
> *Betreff:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on
> Draft Bylaws
>
>
>
> Thanks Andrew, these are interesting comments.
>
>
>
> I agree on 6 and raised similar concerns in the chat Tuesday.
>
>
>
> On 25, I agree that the problem is lack of clarity. It needs to be clear
>  when a decision is based on GAC consensus or not.
>
>
>
> Also, there is the danger of wrapping a decision based GAC consensus
> advice into a larger group of unrelated matters. Intentionally or not, it
> could force the EC into the undesirable position of (1) not opposing a
> decision based on GAC consensus advice it does not like or (2) opposing it
> knowing that the unrelated matters that have broad support will also be
> blocked with it.
>
>
>
> This is why I suggested echoing Article 25.3 to avoid this dilemma.
> Article 25.3 states:
>
>
>
> ·         The Board shall not combine an amendment of these Bylaws that
> was the result of a policy development process of a Supporting Organization
> (a “PDP Amendment”) with any other amendment.  The Board shall indicate in
> the applicable Board Notice whether such amendment is a PDP Amendment.
>
>
>
> Here is the text that I suggested:
>
>
>
> ·         The Board shall not combine a decision based on or consistent
> with consensus GAC advice with any other decision.  The Board shall
> indicate in the applicable Board Notice whether such a decision is based on
> or is consistent with consensus GAC advice.
>
>
>
> If people have helpful edits, go at it. But I think this would separate –
> in a helpful way – Board decisions based on GAC consensus advice. I don’t
> think it would be onerous. Consensus GAC decisions are not all that
> frequent and, under the amended bylaws, must be indicated as such when sent
> to the Board.
>
>
>
> If the GAC advice is supported elsewhere in the community this requirement
> should not be problematic because broadly supported advice would not pass
> thresholds for EC escalation. But it would allow the EC to consider and, if
> desired, address decisions based on GAC consensus advice in a targeted
> manner.
>
>
>
> As mentioned in the chat, this in no way is an extension of the GAC
> carve-out. It would just help clarify when it might apply.
>
>
>
> 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:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Andrew
> Sullivan
> *Sent:* Thursday, April 07, 2016 9:48 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] CCWG - Proposed Responses to questions on
> Draft Bylaws
>
>
>
> Dear colleagues,
>
> Many apologies for missing calls this week, but as I noted in
> Marrakesh this week is the IETF meeting and I have approximately no
> time.
>
> Anyway, I have some remarks. I'm sorry these are lengthy.
>
> Q1
>
> On the Mission, q1, I think it is extremely unfortunate to agree to
> remove the restriction of "in the root zone".
>
> I reject unequivocally the argument, "It is not true that ICANN
> coordinates assignment ONLY in the root zone, as such term is
> currently understood. ICANN’s gTLD registry and registrar agreements
> and policies deal substantially and primarily with issues relating to
> assignment of names at the second (and in some cases lower) levels of
> the DNS." ICANN's gTLD registry and registrar agreements an policies
> deal susbtantially and primarily with how _those registries and
> registrars_ coordinate assignment in zones outside the root zone.
> That is, ICANN's agreements are a meta-requirement on how other people
> do co-ordination in the DNS, and do not actualy perform the
> co-ordination
>
> I know that this seems like a fine distinction. But it's important to
> keep it in mind because the language that have been in the bylaws
> historically, and that the CCWG has agreed to restore, is the very
> basis on which various people around the Internet mistake ICANN for
> the Internet Police. By removing the restriction to the root zone, we
> are once again freeing ICANN to assert control down the DNS -- a
> control that is very much inconsistent with the distributed authority
> design of the DNS.
>
> Q3
>
> It might be worth observing also that, since the requester is the
> person who asked for the transcripts and recordings, presumably the
> requester could be asked about certain redactions due to the issues
> outlined.
>
> Q6
>
> The proposal for the community just to endorse whatever the board
> decides here strikes me as potentially risky. Supposed the community
> replaces a recalled board member with a new one that is less
> accommodating of a prevailing majority of the Board. The Board would
> be able to remove that new director with a 75% majority. If the EC
> does not have the ability to reject the Board's decision to remove,
> then there could be a procedural deadlock that could only be
> ameliorated by a complete replacement of the Board. That seems
> undesirable.
>
> Q17
>
> I believe the requested addition is overspecification. It will simply
> yield disputes about whether a given recommendation is limited in the
> relevant way.
>
> Q25
>
> The document says
>
> Initially, “solely” was added to tie the Petition Notice to the
> GAC Consensus Board Resolution. For example, the ICANN Budget is
> an amalgamation of many different inputs. If a particular
> expenditure is tangentially related to GAC advice, then the GAC
> should not be removed from voting on that petition.
>
> I don't understand this argument. There are two possibilities: either
> the expenditure is solely related to GAC advice (in which case,
> whether it's "tangential" is irrelevant) or it is not. If it is not,
> then the GAC exclusion is not entailed. If it is solely related to
> GAC advice, then I don't get the claim above that the GAC should not
> be excluded -- that's the whole point of the "carve out".
>
> I hope these remarks are useful. Please see also the remarks that I sent
> in collaboration with my colleagues on the IAB.
>
> Best regards,
>
> A
>
>
>
> On Wed, Apr 06, 2016 at 06:30:14PM -0400, Bernard Turcotte wrote:
> > All,
> >
> > Co-chairs and rapporteurs have reviewed and proposed answers to all
> > questions some based on the results of the Tuesday April 5th meeting of
> the
> > CCWG-Accountability.
> >
> > These are attached in preparation for the Thursday April 7th meeting of
> the
> > CCWG-Accountability on this topic.
> >
> > The CCWG-Accountability Co-chairs Mathieu, Thomas and Leon
>
>
> > _______________________________________________
> > Accountability-Cross-Community mailing list
> > Accountability-Cross-Community at icann.org
> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
> --
> Andrew Sullivan
> ajs at anvilwalrusden.com
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>
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