[CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Mark Carvell mark.carvell at culture.gov.uk
Wed Feb 17 10:45:13 UTC 2016


Dear Kavouss and CCWG colleagues

I agree. Recall of the entire Board would be an extraordinary course to
take that would have widespread ramifications - quite possibly political
ones included - in view of its likely impact on ICANN governance and
confidence in the overall stability of the global domain name system and
how it is managed and coordinated. It is well recognised - as the Board has
made clear and GAC representatives too - that a process leading to a
decision of such magnitude should involve the entire ICANN community
including governments. In the even more extraordinary eventuality of this
happening as a consequence of Board acceptance of GAC advice so that the
GAC would not able to participate directly in the decision phase of the
escalation path - though doubtless continuing to act in an advisory role -
there needs to be a safeguard against such a decision being too narrowly
based. If I understand it correctly, the proposal by the Board to add the
requirement of a finding by the Independent Review Panel against the Board
decision based on consensus GAC advice provides that crucial safeguard
requirement before a process to reach a decision to recall the Board can be
undertaken.  So I would recommend support for the Board's proposal as an
adjunct to the threshold in this specific scenario.

I hope that these comments are helpful. Kind regards

Mark

Mark Carvell
​United Kingdom Representative on the Governmental Advisory Committee ​of
ICANN

Global Internet Governance Policy
Department for Culture, Media and Sport
mark.carvell at culture.gov.uk
tel +44 (0) 20 7211 6062

On 17 February 2016 at 07:34, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear All
> Too much theory and some mixing up the situation.
> Mission is part of the Bylaws .
> The Carve- out deals with just when ICANN is alleged by the community
> exceeding its Mission and nothing else. Too broad interpretation of Bruce ,
> s amendments.
> One could not simply spill the Board with just 3 SOs/AC.
> Regards
> Kavouss
>
> Sent from my iPhone
>
> > On 17 Feb 2016, at 04:40, Schaefer, Brett <Brett.Schaefer at heritage.org>
> wrote:
> >
> > Jordan,
> >
> > The way I read it, the Board is insisting on a 4 SOAC threshold for
> spilling the Board in all circumstances except when it is specifically
> defying an IRP ruling against a decision based on consensus GAC advice.
> >
> > In other words, if the community wants to spill the Board based on its
> implementation of GAC Advice, but where the justification for the use of
> this community power is something other than a violation of the Bylaws or
> Articles, then the Board says that the 4 SOAC threshold should apply rather
> than the 3 SOAC threshold currently proposed under the GAC carve out.  If
> this read is wrong, please let me know how.
> >
> > This may be acceptable to the CCWG, but let's not pretend that it is
> some minor tweak. As Becky noted, this would materially narrow the spill
> the Board power by making it harder to exercise.
> >
> > I agree that this situation should rarely arise. The community is
> populated by serious people and the Board should not fear that these powers
> will be exercised lightly. But they also need to be reasonably available if
> necessary. That is why we resisted setting the thresholds at levels
> requiring unanimous support in the first place. In my opinion, the Board
> has not offered a compelling reason for their proposed change.
> >
> > If the Board is needs some assurance, then Becky's narrower
> interpretation should be sufficient.
> >
> > 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<http://heritage.org/>
> >
> > On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan at internetnz.net.nz
> <mailto:jordan at internetnz.net.nz>> wrote:
> >
> > Robin, I don't think that is what is being proposed.
> >
> > All that is being discussed is in relation to the GAC carveout, where we
> had earlier agreed that where there was a challenge to the Board's
> implementation of GAC advice, GAC couldn't also be a decisional participant
> in any move to recall the Board.
> >
> > That got added to by including a lower thresholds in that situation, to
> avoid a unanimity requirement.
> >
> > Then it got qualified by noting that if there had been an IRP, etc etc.
> >
> > But what is not being proposed, as I understand it, is any change to the
> general power to recall the ICANN Board or the thresholds to operate it.
> >
> > I would not support any such changes.
> >
> >
> > cheers
> > Jordan
> >
> >
> > On 17 February 2016 at 15:55, Robin Gross <robin at ipjustice.org<mailto:
> robin at ipjustice.org>> wrote:
> > The CCWG never discussed, let alone agreed to narrow the grounds for
> spilling the board to only those grounds for an IRP as the board suddenly
> proposes.  We cannot have such a significant narrowing of our mechanisms at
> the hour 23:59.  The board should have proposed this curtailment months
> ago, when the issue could have been fairly considered.  But the board can’t
> slip it in at this impossibly late hour.
> >
> > Robin
> >
> >
> >
> > On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <
> Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>
> wrote:
> >
> > Hello All,
> >
> > To reiterate the Board's position in the case of the carve out
> compromise involving GAC advice, the Board can agree to reducing the
> threshold for Board removal to three SOs or ACs, with no more than one
> objecting, when there was an IRP finding against the Board regarding the
> acceptance of GAC advice.
> >
> > For all other attempts to remove the full ICANN Board, the Board does
> not support lowering the threshold below four SOs or ACs, with no more than
> one objecting.  .  The power to spill the Board would remain available as
> contemplated within the CCWG's third draft proposal.
> >
> > For the avoidance of doubt, if the Board accepts GAC advice within the
> limitations of ICANN's mission and bylaws, an IRP panel confirms that is
> the case, and the community simply dislikes the GAC advice - then the
> threshold of 4 SOs and ACs continues to apply.   If the GAC is excluded
> from participating then this would mean that the ccNSO, GNSO, ASO and ALAC
> would need to agree that the Board should be removed.
> >
> > Our view is that past cases relating to disagreement on GAC advice have
> been focussed on concerns that ICANN is exceeding its mission or is not
> following its processes.   The IRP is the most appropriate vehicle to
> resolve disputes in this area.   In general the Board consults widely with
> the whole community before accepting the advice from any one part of the
> community.    We think a situation where the community broadly disagrees
> with an action the Board has taken that is within the mission and bylaws is
> likely to be extremely rare, and the threshold of 4 SOs and ACs is still
> appropriate in that scenario if the community simply dislikes the Board's
> decision.
> >
> > Regards,
> > Bruce Tonkin
> >
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> >
> >
> >
> > --
> > Jordan Carter
> >
> > Chief Executive
> > InternetNZ - your voice for the Open Internet
> >
> > +64-4-495-2118 (office) | +64-21-442-649 (mob)
> > Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
> > Skype: jordancarter
> > Web: www.internetnz.nz<http://www.internetnz.nz>
> >
> >
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